Monday, June 18, 2018
cantrell notes
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A public official may, however, be held liable if he violated constitutional or statutory rights that were clearly established at the time he acted such that a reasonably competent official should have then known the rules of law governing his conduct, unless the official pleads and proves in his defense extraordinary circumstances by virtue of which he neither knew nor should have known of the relevant legal standard.
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A public official may, however, be held liable if he violated constitutional or statutory rights that were clearly established at the time he acted such that a reasonably competent official should have then known the rules of law governing his conduct, unless the official pleads and proves in his defense extraordinary circumstances by virtue of which he neither knew nor should have known of the relevant legal standard.
The Restatement provides:
When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.
Restatement (Second) of Torts § 874A (1979).
See Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932) and Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759 (1927) (civil damage remedy for violation of federal statute forbidding racial discrimination at the voting polls); see also Swafford v. Templeton, 185 U.S. 487, 22 S.Ct. 783, 46 L.Ed. 1005 (1902) and Wiley v. Sinkler, 179 U.S. 58, 21 S.Ct. 17, 45 L.Ed. 84 (1900) (civil damage action for unlawful rejection of plaintiffs' votes at federal elections).
to do
move these to palmer blog.
do a request for production of documents.
move these to palmer blog.
do a request for production of documents.
notes for an entry concerning affirmative defenses
7 am june 18th to so far, 8 am. pausing 11:15 to read benicec.
plaintiff's response to affirmative defenses raised in answer.
Suit was commenced in may 1.
It was removed to this court.
An answer was filed 6/14, generally denying most of the allegations in the complaint, and raising eleven affirmative defenses, set out in table 1.
This filing is plaintiff's response to the affirmative defenses.
DEFENDANTS’ AFFIRMATIVE DEFENSES
1. The Plaintiff has failed to state a claim upon which relief may be granted.
disagree.
2. The Defendants are entitled to qualified immunity, or other immunity that may apply.
I agree the doctrine of qualified immunity is generally applicable.
Harlow v Fitzgerald, Saucier v Katz.
But here, the right to vote, the right to a provisional ballot,
and the right to a hearing, are well-established,
and a reasonable county clerk and county board would be aware of these rights. E.g. Crawford v Marion County Election Board.
The qualified immunity question as to Rose is more fact intensive.
Rose was trained via a video. I ask the court to take judicial notice of the training video, which is online at defendant's web site, or if there is a procedure to enter the video into evidence that can be done.
Rose could reasonably allege that he was inadequately trained by Eldridge and the board, in that the training video states that ID is required, and only a half hour later confusingly explains provisional ballots.
He made a call to the voting center. Only his half of the call is on record. He may have been misadvised by the unknown person he spoke to. If so, this would be evidence of a failure to properly train and supervise Rose.
He made a second call later, and again might have been badly advised.
But in the answer Rose denies that he was mistrained or undersupervised.
Here, the interests of Rose may be adverse to the interests of Eldridge, although they are currently represented by the same counsel.
If he was properly trained and supervised, he lacks qualified immunity for his unlawful actions, in twice denying me a provisional ballot, and ordering me to leave.
To me, the most telling factor is that when I was on the phone with an attorney from the voting center, who was going to explain to Rose how to do the provisional ballot,
he refused to speak to her, and ordered me to leave.
Perhaps Rose has QI. Perhaps he does not. But it cannot be the case that Eldridge properly trained and supervised Rose, AND that he has QI.
If any of the 6 pollworkers had been properly trained, they would have been able to explain to Rose or Jones that a challenged voter must be offered a provisional ballot.
This supports the theory that the training was inadequate.
Perhaps Rose's best argument for QI is corporation counsel's response to the notice of tort claims, which ratified his conduct, and denied any wrongdoing.
The QI doctrine applies to every federal claim, but to none of the state claims. Indiana, as to its statutes and constitution, has not adopted QI. see the discussion in cantrell, which says the itca has replaced QI.
If there are other immunities at issue in this case, counsel should elaborate what those are.
3. The Defendants did not violate any of the Plaintiff’s constitutional rights.
Disagree. If true, I could still prevail on the federal and state statutory claims.
The right to vote is “individual and personal in nature,” Reynolds v.
Sims, 377 U. S. 533, 561, and “voters who allege facts showing disadvantage
to themselves as individuals have standing to sue” to remedy
that disadvantage, Baker, 369 U. S., at 206. Gil, 6/18/2018. oops that's tthe sylabus.
Voter ID creates a similar vote dilution.
When that moment does not come—when legislators can entrench themselves in office despite the people’s will—the foundation of effective democratic governance dissolves. id.
lunch break now that it's noon.
As a final matter, it must be underscored that this Court has recognized the “right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights.” BE&K Constr. Co. v. NLRB, 536 U. S. 516, 524 (2002) (internal quotation marks omitted). Lozman alleges the City deprived him of this liberty by retaliating against him for his lawsuit against the City and his criticisms of public officials. Thus, Lozman’s speech is high in the hierarchy of First Amendment values. See Connick v. Myers, 461 U. S. 138, 145 (1983). Lozman II, 6/18/18.
4. The Plaintiff’s claims are barred by res judicata and/or the doctrines of claim- or issue preclusion.
Disagree, but there are two prior cases which are relevant.
In Stewart v White, two rulings by judge McKinney found again me on several points of law, which may limit the scope of this action, but do not defeat it.
In Stewart v White, I was properly offered a provisional ballot, which was then not counted. The court determined that the failure to count my ballot did not require that the statute be invalidated, and did not order lesser relief such as counting my ballot.
An individual denied the right to vote due to a failure to produce photographic identification can sign an affidavit attesting to the citizen’s right to vote in that precinct, in which case the individual may cast a provisional ballot. IND. CODE § 3-11-8-25.1(e). To have the provisional ballot counted, the voter must appear before the circuit court clerk or the county election board by noon on the tenth day following the election. IND. CODE §§ 3-11.7-5-1. At that time, the voter must either provide proof of identification and execute an affidavit that he or she was the person who cast the provisional ballot or file an affidavit attesting to his or her religious objection to being photographed or averring that he or she is indigent and cannot obtain proof of identification without paying a fee. IND. CODE § 3-11.7-5-2.5.
Res Judicata or issue preclusion may prevent the board from arguing that there is no right to a provisional ballot. stewart v white clearly establishes the right to a provisional ballot.
Some of the same parties, different facts, different legal issues, so Stewart v White does not bar this action via res judicata.
however, the rulings in white on stewart's 24th and 4th amendment claims may be binding here, even where they arise in a different factual context. this is particularly important because these rulings are wrong on both points, and the time to appeal is long past. as stated in the complaint, this is not an attempt to relitagate those issues already decided.
this prior ruling may constrain or bar up to two of the counts, but does not make the entire case go away.
In Stewart v Proffitt, in 2008, some of the same parties, very similar facts, in a previous election cycle.
However, Proffit did not turn on questions of law. She disputed the facts, in an affidavit I consider to be perjury, because it was knowingly false as to a material and dispostive fact. After the court denied my request to appoint counsel, I abandoned the case. There was no ruling of law which would preclude the issues and claims in this new case.
The main difference is this time I have better evidence.
After Proffitt's perjury, I started taping my attempts to vote. Some of these files are online at http://youtube.com/arbivark.
So neither the White or Proffitt cases preclude this latest case.
5. Plaintiff’s claims under Monell, if any, are barred to the extent he has failed to properly state a claim.
I agree that the Monell claims would be barred if I had failed to state a claim. I disagree that I have failed to state a claim.
6. There is no private right of action for monetary damages under the Indiana Constitution.
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 7 of 9 PageID #: 52 8
Disagree. There is no Indiana Supreme Court case which states "There is no private right of action for monetary damages under the Indiana Constitution." See Cantrell.
Nor has the court held, a la Bivens, that the Indiana Constitution is self-executing.
No case I have been able to find has held that the can be no right to damages for violation of Article II section 1.
Nor do I find reported cases awarding damages under section 1. This may be a novel question.
There are multiple examples where Marion County has paid settlements of state constitutional claims, and I would be willing to accept a reasonable settlement of these claims.
If it were true that damages cannot be paid for violation of the state constitution, it is unclear why defendants settle such cases, but there could be other reasons.
There are several ways this court can address important questions of first impression as to state law.
It can decide the questions itself. It can remand state law claims to the state court. It could, It can certify questions to the Indiana Supreme Court. See Sotomayor dissenting in Minnesota v Mansky, 6/2018, BAPAC v Baldwin, Majors v Abell.
I have no objection to certification.
It is important to me that the state claims which are the heart of this action do not get swept under the rug or ignored with a footnote.
Indiana law contains no legal fees provision comparable to 42 USC 1983, 1988, so it was necessary for me to include one or more federal claims in order to be able to try to attract counsel. I am currently unrepresented, proceeding pro se by necessity rather than by choice. I do not insist on appointment of counsel, but I would not be opposed to it.
But the state law issues are the ones most important to me, and I do not waive them and am unwilling to do so.
I have not asserted that the Indiana Constitution is self-executing. In Cantrell, the Court declined to find Article I section 9, the free speech provision, an independent source for damages, where the tort claims act provisions provided an alternative. Here, I have no objection to the statutory cap for damages under the tort claims act. I have provided notice of the tort claim, and the board, by counsel, has denied the claim and doubled down on Rose's misfeasance.
Here is the text, hereinafter referred to as the smoking gun letter.
Re: Tort Claim Notice 16-T-803
Dear Mr. Stewart,
Our office has received and reviewed your letter file stamped by the Marion County Clerk's Office on November 2, 2016. In your letter, you complain that you were not allowed to vote in the May 3, 2016 primary election because you "declined to show ID."
Indiana code Sec. 3-11-8.25.1 provides that "a voter who desires to vote an official ballot at an election shall provide proof of identification." The term "proof of identification" is defined by Indiana Code Sec. 3--2-40.5 and "refers to a document that satisfies all of the following."
[statutory text omitted for brevity]
Indiana's voter ID law was upheld by the United States Supreme Court in the case of Crawford v. Marion County Election Board, 53 U.S. 181 (2008.)
The poll workers complied with the law.
Sincerely,
Pamela G. Scheeman
Deputy Chief Litigation Counsel
The City of Indianapolis
Office of Corporation Counsel
200 E Washington St Room 1601
Indianapolis IN 46204
Phone [redacted]
7. The Defendants are immune against Plaintiff’s state law claims to the extent Indiana Code § 34-13-3-3 et seq. applies.
I have complied or substantially complied with the notice requirements, and seek recovery only as permitted under the statute. See Tort Claim Notice 16-T-803.
8. The Plaintiff’s state law claims are barred to the extent he has failed to comply with the notice requirements of the Indiana Tort Claims Act, Indiana Code § 34-13-3-1 et seq.
Yes, but there is no such extent.
9. Plaintiff’s recovery, if any, on state law claims is limited pursuant to Indiana Code § 34- 13-3-4.
I will agree arguendo. Here I seek only the damages allowed under the statute. Personally I believe in the policies expressed in Bivens, that constitutions are self-executing, and that courts err, and fail in their duties as a co-equal branch, when they fail to enforce state constitutional rights. But this case makes no such claim.
10. The Defendants did not act with malice or deliberate indifference.
Disagree. These are terms of art.
11. The Defendants reserve the right to assert additional affirmative defenses as discovery continues.
Agree
Table 1.
DEFENDANTS’ AFFIRMATIVE DEFENSES
1. The Plaintiff has failed to state a claim upon which relief may be granted.
2. The Defendants are entitled to qualified immunity, or other immunity that may apply.
3. The Defendants did not violate any of the Plaintiff’s constitutional rights.
4. The Plaintiff’s claims are barred by res judicata and/or the doctrines of claim- or issue preclusion.
5. Plaintiff’s claims under Monell, if any, are barred to the extent he has failed to properly state a claim.
6. There is no private right of action for monetary damages under the Indiana Constitution.
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 7 of 9 PageID #: 52 8
7. The Defendants are immune against Plaintiff’s state law claims to the extent Indiana Code § 34-13-3-3 et seq. applies.
8. The Plaintiff’s state law claims are barred to the extent he has failed to comply with the notice requirements of the Indiana Tort Claims Act, Indiana Code § 34-13-3-1 et seq.
9. Plaintiff’s recovery, if any, on state law claims is limited pursuant to Indiana Code § 34- 13-3-4.
10. The Defendants did not act with malice or deliberate indifference.
11. The Defendants reserve the right to assert additional affirmative defenses as discovery continues.
7 am june 18th to so far, 8 am. pausing 11:15 to read benicec.
plaintiff's response to affirmative defenses raised in answer.
Suit was commenced in may 1.
It was removed to this court.
An answer was filed 6/14, generally denying most of the allegations in the complaint, and raising eleven affirmative defenses, set out in table 1.
This filing is plaintiff's response to the affirmative defenses.
DEFENDANTS’ AFFIRMATIVE DEFENSES
1. The Plaintiff has failed to state a claim upon which relief may be granted.
disagree.
2. The Defendants are entitled to qualified immunity, or other immunity that may apply.
I agree the doctrine of qualified immunity is generally applicable.
Harlow v Fitzgerald, Saucier v Katz.
But here, the right to vote, the right to a provisional ballot,
and the right to a hearing, are well-established,
and a reasonable county clerk and county board would be aware of these rights. E.g. Crawford v Marion County Election Board.
Justice Stevens announced the judgment of the Court and delivered an opinion in which The Chief Justice and Justice Kennedy join.
At issue in these cases is the constitutionality of an Indiana statute requiring citizens voting in person on election day, or casting a ballot in person at the office of the circuit court clerk prior to election day, to present photo identification issued by the government.
Referred to as either the “Voter ID Law” or “SEA 483,”[Footnote 1] the statute applies to in-person voting at both primary and general elections. The requirement does not apply to absentee ballots submitted by mail, and the statute contains an exception for persons living and voting in a state-licensed facility such as a nursing home. Ind. Code Ann. §3–11–8–25.1(e) (West Supp. 2007). A voter who is indigent or has a religious objection to being photographed may cast a provisional ballot that will be counted only if she executes an appropriate affidavit before the circuit court clerk within 10 days following the election. §§3–11.7–5–1, 3–11.7–5–2.5(c) (West 2006).[Footnote 2] A voter who has photo identification but is unable to present that identification on election day may file a provisional ballot that will be counted if she brings her photo identification to the circuit county clerk’s office within 10 days. §3–11.7–5–2.5(b).
The qualified immunity question as to Rose is more fact intensive.
Rose was trained via a video. I ask the court to take judicial notice of the training video, which is online at defendant's web site, or if there is a procedure to enter the video into evidence that can be done.
Rose could reasonably allege that he was inadequately trained by Eldridge and the board, in that the training video states that ID is required, and only a half hour later confusingly explains provisional ballots.
He made a call to the voting center. Only his half of the call is on record. He may have been misadvised by the unknown person he spoke to. If so, this would be evidence of a failure to properly train and supervise Rose.
He made a second call later, and again might have been badly advised.
But in the answer Rose denies that he was mistrained or undersupervised.
Here, the interests of Rose may be adverse to the interests of Eldridge, although they are currently represented by the same counsel.
If he was properly trained and supervised, he lacks qualified immunity for his unlawful actions, in twice denying me a provisional ballot, and ordering me to leave.
To me, the most telling factor is that when I was on the phone with an attorney from the voting center, who was going to explain to Rose how to do the provisional ballot,
he refused to speak to her, and ordered me to leave.
Perhaps Rose has QI. Perhaps he does not. But it cannot be the case that Eldridge properly trained and supervised Rose, AND that he has QI.
If any of the 6 pollworkers had been properly trained, they would have been able to explain to Rose or Jones that a challenged voter must be offered a provisional ballot.
This supports the theory that the training was inadequate.
Perhaps Rose's best argument for QI is corporation counsel's response to the notice of tort claims, which ratified his conduct, and denied any wrongdoing.
The QI doctrine applies to every federal claim, but to none of the state claims. Indiana, as to its statutes and constitution, has not adopted QI. see the discussion in cantrell, which says the itca has replaced QI.
If there are other immunities at issue in this case, counsel should elaborate what those are.
3. The Defendants did not violate any of the Plaintiff’s constitutional rights.
Disagree. If true, I could still prevail on the federal and state statutory claims.
Voter ID creates a similar vote dilution.
When that moment does not come—when legislators can entrench themselves in office despite the people’s will—the foundation of effective democratic governance dissolves. id.
lunch break now that it's noon.
As a final matter, it must be underscored that this Court has recognized the “right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights.” BE&K Constr. Co. v. NLRB, 536 U. S. 516, 524 (2002) (internal quotation marks omitted). Lozman alleges the City deprived him of this liberty by retaliating against him for his lawsuit against the City and his criticisms of public officials. Thus, Lozman’s speech is high in the hierarchy of First Amendment values. See Connick v. Myers, 461 U. S. 138, 145 (1983). Lozman II, 6/18/18.
4. The Plaintiff’s claims are barred by res judicata and/or the doctrines of claim- or issue preclusion.
Disagree, but there are two prior cases which are relevant.
In Stewart v White, two rulings by judge McKinney found again me on several points of law, which may limit the scope of this action, but do not defeat it.
In Stewart v White, I was properly offered a provisional ballot, which was then not counted. The court determined that the failure to count my ballot did not require that the statute be invalidated, and did not order lesser relief such as counting my ballot.
An individual denied the right to vote due to a failure to produce photographic identification can sign an affidavit attesting to the citizen’s right to vote in that precinct, in which case the individual may cast a provisional ballot. IND. CODE § 3-11-8-25.1(e). To have the provisional ballot counted, the voter must appear before the circuit court clerk or the county election board by noon on the tenth day following the election. IND. CODE §§ 3-11.7-5-1. At that time, the voter must either provide proof of identification and execute an affidavit that he or she was the person who cast the provisional ballot or file an affidavit attesting to his or her religious objection to being photographed or averring that he or she is indigent and cannot obtain proof of identification without paying a fee. IND. CODE § 3-11.7-5-2.5.
Res Judicata or issue preclusion may prevent the board from arguing that there is no right to a provisional ballot. stewart v white clearly establishes the right to a provisional ballot.
Some of the same parties, different facts, different legal issues, so Stewart v White does not bar this action via res judicata.
however, the rulings in white on stewart's 24th and 4th amendment claims may be binding here, even where they arise in a different factual context. this is particularly important because these rulings are wrong on both points, and the time to appeal is long past. as stated in the complaint, this is not an attempt to relitagate those issues already decided.
this prior ruling may constrain or bar up to two of the counts, but does not make the entire case go away.
In Stewart v Proffitt, in 2008, some of the same parties, very similar facts, in a previous election cycle.
However, Proffit did not turn on questions of law. She disputed the facts, in an affidavit I consider to be perjury, because it was knowingly false as to a material and dispostive fact. After the court denied my request to appoint counsel, I abandoned the case. There was no ruling of law which would preclude the issues and claims in this new case.
The main difference is this time I have better evidence.
After Proffitt's perjury, I started taping my attempts to vote. Some of these files are online at http://youtube.com/arbivark.
So neither the White or Proffitt cases preclude this latest case.
5. Plaintiff’s claims under Monell, if any, are barred to the extent he has failed to properly state a claim.
I agree that the Monell claims would be barred if I had failed to state a claim. I disagree that I have failed to state a claim.
6. There is no private right of action for monetary damages under the Indiana Constitution.
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 7 of 9 PageID #: 52 8
Disagree. There is no Indiana Supreme Court case which states "There is no private right of action for monetary damages under the Indiana Constitution." See Cantrell.
Nor has the court held, a la Bivens, that the Indiana Constitution is self-executing.
No case I have been able to find has held that the can be no right to damages for violation of Article II section 1.
Nor do I find reported cases awarding damages under section 1. This may be a novel question.
There are multiple examples where Marion County has paid settlements of state constitutional claims, and I would be willing to accept a reasonable settlement of these claims.
If it were true that damages cannot be paid for violation of the state constitution, it is unclear why defendants settle such cases, but there could be other reasons.
There are several ways this court can address important questions of first impression as to state law.
It can decide the questions itself. It can remand state law claims to the state court. It could, It can certify questions to the Indiana Supreme Court. See Sotomayor dissenting in Minnesota v Mansky, 6/2018, BAPAC v Baldwin, Majors v Abell.
I have no objection to certification.
It is important to me that the state claims which are the heart of this action do not get swept under the rug or ignored with a footnote.
Indiana law contains no legal fees provision comparable to 42 USC 1983, 1988, so it was necessary for me to include one or more federal claims in order to be able to try to attract counsel. I am currently unrepresented, proceeding pro se by necessity rather than by choice. I do not insist on appointment of counsel, but I would not be opposed to it.
But the state law issues are the ones most important to me, and I do not waive them and am unwilling to do so.
I have not asserted that the Indiana Constitution is self-executing. In Cantrell, the Court declined to find Article I section 9, the free speech provision, an independent source for damages, where the tort claims act provisions provided an alternative. Here, I have no objection to the statutory cap for damages under the tort claims act. I have provided notice of the tort claim, and the board, by counsel, has denied the claim and doubled down on Rose's misfeasance.
Here is the text, hereinafter referred to as the smoking gun letter.
Re: Tort Claim Notice 16-T-803
Dear Mr. Stewart,
Our office has received and reviewed your letter file stamped by the Marion County Clerk's Office on November 2, 2016. In your letter, you complain that you were not allowed to vote in the May 3, 2016 primary election because you "declined to show ID."
Indiana code Sec. 3-11-8.25.1 provides that "a voter who desires to vote an official ballot at an election shall provide proof of identification." The term "proof of identification" is defined by Indiana Code Sec. 3--2-40.5 and "refers to a document that satisfies all of the following."
[statutory text omitted for brevity]
Indiana's voter ID law was upheld by the United States Supreme Court in the case of Crawford v. Marion County Election Board, 53 U.S. 181 (2008.)
The poll workers complied with the law.
Sincerely,
Pamela G. Scheeman
Deputy Chief Litigation Counsel
The City of Indianapolis
Office of Corporation Counsel
200 E Washington St Room 1601
Indianapolis IN 46204
Phone [redacted]
7. The Defendants are immune against Plaintiff’s state law claims to the extent Indiana Code § 34-13-3-3 et seq. applies.
I have complied or substantially complied with the notice requirements, and seek recovery only as permitted under the statute. See Tort Claim Notice 16-T-803.
8. The Plaintiff’s state law claims are barred to the extent he has failed to comply with the notice requirements of the Indiana Tort Claims Act, Indiana Code § 34-13-3-1 et seq.
Yes, but there is no such extent.
9. Plaintiff’s recovery, if any, on state law claims is limited pursuant to Indiana Code § 34- 13-3-4.
I will agree arguendo. Here I seek only the damages allowed under the statute. Personally I believe in the policies expressed in Bivens, that constitutions are self-executing, and that courts err, and fail in their duties as a co-equal branch, when they fail to enforce state constitutional rights. But this case makes no such claim.
10. The Defendants did not act with malice or deliberate indifference.
Disagree. These are terms of art.
11. The Defendants reserve the right to assert additional affirmative defenses as discovery continues.
Agree
Table 1.
DEFENDANTS’ AFFIRMATIVE DEFENSES
1. The Plaintiff has failed to state a claim upon which relief may be granted.
2. The Defendants are entitled to qualified immunity, or other immunity that may apply.
3. The Defendants did not violate any of the Plaintiff’s constitutional rights.
4. The Plaintiff’s claims are barred by res judicata and/or the doctrines of claim- or issue preclusion.
5. Plaintiff’s claims under Monell, if any, are barred to the extent he has failed to properly state a claim.
6. There is no private right of action for monetary damages under the Indiana Constitution.
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 7 of 9 PageID #: 52 8
7. The Defendants are immune against Plaintiff’s state law claims to the extent Indiana Code § 34-13-3-3 et seq. applies.
8. The Plaintiff’s state law claims are barred to the extent he has failed to comply with the notice requirements of the Indiana Tort Claims Act, Indiana Code § 34-13-3-1 et seq.
9. Plaintiff’s recovery, if any, on state law claims is limited pursuant to Indiana Code § 34- 13-3-4.
10. The Defendants did not act with malice or deliberate indifference.
11. The Defendants reserve the right to assert additional affirmative defenses as discovery continues.
Monday, June 18, 2018
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION
ROBBIN STEWART, ) ) Plaintiff, ) v. ) )
Cause No.: 1:18-cv-1487-RLY-DML
MARION COUNTY ELECTION BOARD, ) MYLA ELDRIDGE, and STEVEN ROSE, ) ) Defendants. )
DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT
Comes now Marion County Election Board, Myla Eldridge, and Steven Rose (“Defendants”), by counsel to answer Plaintiff’s Complaint, as follows:
ROBBIN STEWART, ) ) Plaintiff, ) v. ) )
Cause No.: 1:18-cv-1487-RLY-DML
MARION COUNTY ELECTION BOARD, ) MYLA ELDRIDGE, and STEVEN ROSE, ) ) Defendants. )
DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT
Comes now Marion County Election Board, Myla Eldridge, and Steven Rose (“Defendants”), by counsel to answer Plaintiff’s Complaint, as follows:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBBIN STEWART, ) ) Plaintiff, ) v. ) )
Cause No.: 1:18-cv-1487-RLY-DML
MARION COUNTY ELECTION BOARD, ) MYLA ELDRIDGE, and STEVEN ROSE, ) ) Defendants. )
DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT
Comes now Marion County Election Board, Myla Eldridge, and Steven Rose (“Defendants”), by counsel to answer Plaintiff’s Complaint, as follows:
INTRODUCTION 1. This case arises out of the refusal by precinct officials to allow Plaintiff to cast a provisional ballot at the 2016 Primary, and the subsequent ratification of that action by the County. This has violated Plaintiff’s clearly established rights under the voter ID Statute, the Indiana Constitution, a Federal Statute, and the Federal Constitution. This is as action for damages and declaratory judgment.
ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 1 of Plaintiff’s Complaint, and so deny the allegations.
PARTIES 2. Plaintiff was a would-be voter in Marion County. Since 2005, he has found it difficult to vote, since he does not display ID except when driving, for privacy reasons discussed in his Crawford amicus. This has been the topic of previous litigation, and this new action
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 1 of 9 PageID #: 46 2
does not seek to relitgate those cases or issues. The relief sought here is damages, under Monell plus a declaratory judgment that his rights were violated. ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 2 of Plaintiff’s Complaint, and so deny the allegations.
3. Defendants are the Marion County Elections Board (“the Board”) and its three members in their official capacities: Myla A. Eldridge (“Eldridge”), Keith Johnson (“Johnson”), and Melissa Thompson (“Thompson”). By law, the three-member Board consists of the elected Clerk of Marion Circuit (Eldridge) and her two appointees, one from the county Democratic Party (Johnson) and one for the county Republican Party (Thompson). Eldridge is also named in her personal capacity, for failure to adequately train and supervise Rose. Steven Rose 3 ANSWER: The Defendants admit the occurrence of the May 3, 2016, primary election but deny the remaining allegations in this paragraph.
6. Rose is not held to an expert standard, unlike Eldridge. He and the other poll workers were inadequately trained by Eldridge. They may therefore enjoy some qualified or absolute immunity. Fitzgerald. Both Eldridge and rose acted with willfull (sic) and reckless disregard for the rights of the Plaintiff. ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 6 of Plaintiff’s Complaint, and so deny the allegations.
7. Plaintiff filed a notice of tort claims (sic) to which the Board by Counsel sent a letter which ratified the decision to deny Plaintiff a provisional ballot, and denied the tort claim. This action follows. ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 7 of Plaintiff’s Complaint, and so deny the allegations. 8. Defendants violated Plaintiff’s right to vote a provisional ballot under the Indiana Voter ID Statute. (Count 1) ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 8 of Plaintiff’s Complaint, and so deny the allegations.
9. Defendants violated Plaintiff’s right to vote under Article II, Section 1 the right to free and equal elections. Elections are not free, in either sense of the word, when the voter Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 3 of 9 PageID #: 48 4 must produce a passport or driver’s license he has paid for. Under the statute, they were required to offer a provisional ballot to a person who could not or would not show ID. The clerk failed to adequately train and supervise poll workers. (Count 2) ANSWER: Deny.
10. Defendants’s (sic) violated Plaintiff’s right to vote under Article II, Section 1, the right to free and equal elections. Elections are not equal whne voters willing and able to show a license, such as a passport, are allowed to vote, but those without are not. Under the statute, they were required to offer a provisional ballot to a person who could not or would not show ID. Elections are not equal, where other similarly situated voters at other precincts and in other counties were offered provisional ballots, but Plaintiff was not. (Count 3) ANSWER: Deny.
11. By denying Plaintiff a ballot, even a provisional ballot, his rights under Article 1, Section 9 were violated. Voting is an aspect of the right to speak freely. Voting is political speech given strict scrutiny under Price v. Indiana. Yick Wo v. Hopkins. (Count 4) ANSWER: Deny.
12. Article 1, Section 11. Defendant demanded plaintiff’s papers as a condition of exercising his right to vote, thereby violating his right to vote, thereby violating his freedom of from search under Section 11. This created an unconstitutional condition, where the exercise of one right to made contingent on waiving another. There is no probable cause or
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 4 of 9 PageID #: 49 5
reasonable suspicion. The search was arbitrary and capricious instead of being programmatic and standardized as required under case law independently interpreting Section 11. (Count 5) ANSWER: Deny.
13. Due course of law under Article 1, Section 12. Plaintiff had a right to a provisional ballot which would have allowed him a hearing before the Board as to whether that ballot would be counted. Plaintiff has participated in previous such hearings. The right to a hearing is a fundamental element of due course of law. Plaintiff has a substantive right to vote protected by Section 12 which was violated when they refused to all him to vote. (Count 6) ANSWER: Deny.
14. Article I, Section 23. Equal privileges. Other voters in Plaintiff’s situation were given provisional ballots. Section 23 requires that people in the same situation, legally, be given the same treatment under law. Here instead Plaintiff was treated in an arbitrary and capricious manner. Here the actions of Defendants were contrary to what was required by statute. (Count 7) ANSWER: Deny.
15. Federal Statute: The Help America Vote Act (HAVA) and/or the Motor-Voter Act require that provisional ballots be offered to a person whose vote is challenged. (Count 8)
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 5 of 9 PageID #: 50 6
ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 15 of Plaintiff’s Complaint, and so deny the allegations.
16. The First Amendment right to vote was violated when Defendants refused to allow Plaintiff to vote. (Count 9) ANSWER: Deny.
17. By refusing to issue a provisional ballot, he was deprived of the right to a hearing by the election board as to whether his vote would be counted. This violated his rights under the 14th Amendment due process clause. (Count 10) ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 17 of Plaintiff’s Complaint, and so deny the allegations.
18. By denying the right to vote, they violated his substantive due process rights under the 14th Amendment due process clause. (Count 11) ANSWER: Deny.
19. By denying Plaintiff the right to vote Defendants violated his right to equal protection of the laws (sic) under the 14th Amendment. (Count 12) ANSWER: Deny.
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 6 of 9 PageID #: 51 7 20.
24TH A (sic) claim. When the officials denied him his right to vote for failure to show ID, they violated his rights under the 24th Amendment. In practice, the only document which would have worked is his driver’s license. He obtained his driver’s license by paying a fee of some $20, with a regular renewal fee every 4 or so years. Additionally he had had to purchase a birth certificate from his home state at $10 plus the cost of travel. Because the 24th A (sic) prohibits the payment of any fee as a condition of voting, he is unwilling to display his driver’s license. Additionally, the 24th Amendment, under Harmon v. Forssenius, prohibits the imposition of obstacles and barriers to voting such as an ID requirement. (Count 13) ANSWER: Deny.
WHEREFORE, the Defendants respectfully request that the Plaintiff take nothing by way of his Complaint.
Jury Trial Requested The Defendants respectfully request a jury trial on all of the Plaintiff’s claims.
DEFENDANTS’ AFFIRMATIVE DEFENSES
1. The Plaintiff has failed to state a claim upon which relief may be granted.
2. The Defendants are entitled to qualified immunity, or other immunity that may apply.
3. The Defendants did not violate any of the Plaintiff’s constitutional rights.
4. The Plaintiff’s claims are barred by res judicata and/or the doctrines of claim- or issuepreclusion.
5. Plaintiff’s claims under Monell, if any, are barred to the extent he has failed to properly state a claim.
6. There is no private right of action for monetary damages under the Indiana Constitution.
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 7 of 9 PageID #: 52 8
7. The Defendants are immune against Plaintiff’s state law claims to the extent Indiana Code § 34-13-3-3 et seq. applies.
8. The Plaintiff’s state law claims are barred to the extent he has failed to comply with the notice requirements of the Indiana Tort Claims Act, Indiana Code § 34-13-3-1 et seq.
9. Plaintiff’s recovery, if any, on state law claims is limited pursuant to Indiana Code § 34- 13-3-4.
10. The Defendants did not act with malice or deliberate indifference. 1
1. The Defendants reserve the right to assert additional affirmative defenses as discovery continues.
Respectfully Submitted, /s/ Grant E. Helms Grant E. Helms (29953-49) Assistant Corporation Counsel OFFICE OF CORPORATION COUNSEL 200 East Washington Street, Suite 1601 Indianapolis, Indiana 46204 Telephone: [contact info omitted]
ROBBIN STEWART, ) ) Plaintiff, ) v. ) )
Cause No.: 1:18-cv-1487-RLY-DML
MARION COUNTY ELECTION BOARD, ) MYLA ELDRIDGE, and STEVEN ROSE, ) ) Defendants. )
DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT
Comes now Marion County Election Board, Myla Eldridge, and Steven Rose (“Defendants”), by counsel to answer Plaintiff’s Complaint, as follows:
INTRODUCTION 1. This case arises out of the refusal by precinct officials to allow Plaintiff to cast a provisional ballot at the 2016 Primary, and the subsequent ratification of that action by the County. This has violated Plaintiff’s clearly established rights under the voter ID Statute, the Indiana Constitution, a Federal Statute, and the Federal Constitution. This is as action for damages and declaratory judgment.
ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 1 of Plaintiff’s Complaint, and so deny the allegations.
PARTIES 2. Plaintiff was a would-be voter in Marion County. Since 2005, he has found it difficult to vote, since he does not display ID except when driving, for privacy reasons discussed in his Crawford amicus. This has been the topic of previous litigation, and this new action
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 1 of 9 PageID #: 46 2
does not seek to relitgate those cases or issues. The relief sought here is damages, under Monell plus a declaratory judgment that his rights were violated. ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 2 of Plaintiff’s Complaint, and so deny the allegations.
3. Defendants are the Marion County Elections Board (“the Board”) and its three members in their official capacities: Myla A. Eldridge (“Eldridge”), Keith Johnson (“Johnson”), and Melissa Thompson (“Thompson”). By law, the three-member Board consists of the elected Clerk of Marion Circuit (Eldridge) and her two appointees, one from the county Democratic Party (Johnson) and one for the county Republican Party (Thompson). Eldridge is also named in her personal capacity, for failure to adequately train and supervise Rose. Steven Rose 3 ANSWER: The Defendants admit the occurrence of the May 3, 2016, primary election but deny the remaining allegations in this paragraph.
6. Rose is not held to an expert standard, unlike Eldridge. He and the other poll workers were inadequately trained by Eldridge. They may therefore enjoy some qualified or absolute immunity. Fitzgerald. Both Eldridge and rose acted with willfull (sic) and reckless disregard for the rights of the Plaintiff. ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 6 of Plaintiff’s Complaint, and so deny the allegations.
7. Plaintiff filed a notice of tort claims (sic) to which the Board by Counsel sent a letter which ratified the decision to deny Plaintiff a provisional ballot, and denied the tort claim. This action follows. ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 7 of Plaintiff’s Complaint, and so deny the allegations. 8. Defendants violated Plaintiff’s right to vote a provisional ballot under the Indiana Voter ID Statute. (Count 1) ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 8 of Plaintiff’s Complaint, and so deny the allegations.
9. Defendants violated Plaintiff’s right to vote under Article II, Section 1 the right to free and equal elections. Elections are not free, in either sense of the word, when the voter Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 3 of 9 PageID #: 48 4 must produce a passport or driver’s license he has paid for. Under the statute, they were required to offer a provisional ballot to a person who could not or would not show ID. The clerk failed to adequately train and supervise poll workers. (Count 2) ANSWER: Deny.
10. Defendants’s (sic) violated Plaintiff’s right to vote under Article II, Section 1, the right to free and equal elections. Elections are not equal whne voters willing and able to show a license, such as a passport, are allowed to vote, but those without are not. Under the statute, they were required to offer a provisional ballot to a person who could not or would not show ID. Elections are not equal, where other similarly situated voters at other precincts and in other counties were offered provisional ballots, but Plaintiff was not. (Count 3) ANSWER: Deny.
11. By denying Plaintiff a ballot, even a provisional ballot, his rights under Article 1, Section 9 were violated. Voting is an aspect of the right to speak freely. Voting is political speech given strict scrutiny under Price v. Indiana. Yick Wo v. Hopkins. (Count 4) ANSWER: Deny.
12. Article 1, Section 11. Defendant demanded plaintiff’s papers as a condition of exercising his right to vote, thereby violating his right to vote, thereby violating his freedom of from search under Section 11. This created an unconstitutional condition, where the exercise of one right to made contingent on waiving another. There is no probable cause or
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 4 of 9 PageID #: 49 5
reasonable suspicion. The search was arbitrary and capricious instead of being programmatic and standardized as required under case law independently interpreting Section 11. (Count 5) ANSWER: Deny.
13. Due course of law under Article 1, Section 12. Plaintiff had a right to a provisional ballot which would have allowed him a hearing before the Board as to whether that ballot would be counted. Plaintiff has participated in previous such hearings. The right to a hearing is a fundamental element of due course of law. Plaintiff has a substantive right to vote protected by Section 12 which was violated when they refused to all him to vote. (Count 6) ANSWER: Deny.
14. Article I, Section 23. Equal privileges. Other voters in Plaintiff’s situation were given provisional ballots. Section 23 requires that people in the same situation, legally, be given the same treatment under law. Here instead Plaintiff was treated in an arbitrary and capricious manner. Here the actions of Defendants were contrary to what was required by statute. (Count 7) ANSWER: Deny.
15. Federal Statute: The Help America Vote Act (HAVA) and/or the Motor-Voter Act require that provisional ballots be offered to a person whose vote is challenged. (Count 8)
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 5 of 9 PageID #: 50 6
ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 15 of Plaintiff’s Complaint, and so deny the allegations.
16. The First Amendment right to vote was violated when Defendants refused to allow Plaintiff to vote. (Count 9) ANSWER: Deny.
17. By refusing to issue a provisional ballot, he was deprived of the right to a hearing by the election board as to whether his vote would be counted. This violated his rights under the 14th Amendment due process clause. (Count 10) ANSWER: Defendants lack knowledge or information sufficient to admit or deny the allegations contained in paragraph 17 of Plaintiff’s Complaint, and so deny the allegations.
18. By denying the right to vote, they violated his substantive due process rights under the 14th Amendment due process clause. (Count 11) ANSWER: Deny.
19. By denying Plaintiff the right to vote Defendants violated his right to equal protection of the laws (sic) under the 14th Amendment. (Count 12) ANSWER: Deny.
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 6 of 9 PageID #: 51 7 20.
24TH A (sic) claim. When the officials denied him his right to vote for failure to show ID, they violated his rights under the 24th Amendment. In practice, the only document which would have worked is his driver’s license. He obtained his driver’s license by paying a fee of some $20, with a regular renewal fee every 4 or so years. Additionally he had had to purchase a birth certificate from his home state at $10 plus the cost of travel. Because the 24th A (sic) prohibits the payment of any fee as a condition of voting, he is unwilling to display his driver’s license. Additionally, the 24th Amendment, under Harmon v. Forssenius, prohibits the imposition of obstacles and barriers to voting such as an ID requirement. (Count 13) ANSWER: Deny.
WHEREFORE, the Defendants respectfully request that the Plaintiff take nothing by way of his Complaint.
Jury Trial Requested The Defendants respectfully request a jury trial on all of the Plaintiff’s claims.
DEFENDANTS’ AFFIRMATIVE DEFENSES
1. The Plaintiff has failed to state a claim upon which relief may be granted.
2. The Defendants are entitled to qualified immunity, or other immunity that may apply.
3. The Defendants did not violate any of the Plaintiff’s constitutional rights.
4. The Plaintiff’s claims are barred by res judicata and/or the doctrines of claim- or issuepreclusion.
5. Plaintiff’s claims under Monell, if any, are barred to the extent he has failed to properly state a claim.
6. There is no private right of action for monetary damages under the Indiana Constitution.
Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 7 of 9 PageID #: 52 8
7. The Defendants are immune against Plaintiff’s state law claims to the extent Indiana Code § 34-13-3-3 et seq. applies.
8. The Plaintiff’s state law claims are barred to the extent he has failed to comply with the notice requirements of the Indiana Tort Claims Act, Indiana Code § 34-13-3-1 et seq.
9. Plaintiff’s recovery, if any, on state law claims is limited pursuant to Indiana Code § 34- 13-3-4.
10. The Defendants did not act with malice or deliberate indifference. 1
1. The Defendants reserve the right to assert additional affirmative defenses as discovery continues.
Respectfully Submitted, /s/ Grant E. Helms Grant E. Helms (29953-49) Assistant Corporation Counsel OFFICE OF CORPORATION COUNSEL 200 East Washington Street, Suite 1601 Indianapolis, Indiana 46204 Telephone: [contact info omitted]
county's affirmative defenses in stewart v board. i will try to upload all 9 pages of the answer; trying to copy and paste from a pdf.
Jury Trial Requested The Defendants respectfully request a jury trial on all of the Plaintiff’s claims. DEFENDANTS’ AFFIRMATIVE DEFENSES 1. The Plaintiff has failed to state a claim upon which relief may be granted. 2. The Defendants are entitled to qualified immunity, or other immunity that may apply. 3. The Defendants did not violate any of the Plaintiff’s constitutional rights. 4. The Plaintiff’s claims are barred by res judicata and/or the doctrines of claim- or issuepreclusion. 5. Plaintiff’s claims under Monell, if any, are barred to the extent he has failed to properly state a claim. 6. There is no private right of action for monetary damages under the Indiana Constitution. Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 7 of 9 PageID #: 52 8 7. The Defendants are immune against Plaintiff’s state law claims to the extent Indiana Code § 34-13-3-3 et seq. applies. 8. The Plaintiff’s state law claims are barred to the extent he has failed to comply with the notice requirements of the Indiana Tort Claims Act, Indiana Code § 34-13-3-1 et seq. 9. Plaintiff’s recovery, if any, on state law claims is limited pursuant to Indiana Code § 34- 13-3-4. 10. The Defendants did not act with malice or deliberate indifference. 11. The Defendants reserve the right to assert additional affirmative defenses as discovery continues. Respectfully Submitted, /s/ Grant E. Helms Grant E. Helms (29953-49) Assistant Corporation Counsel OFFICE OF CORPORATION COUNSEL 200 East Washington Street, Suite 1601 Indianapolis, Indiana 46204 Telephone: (317) 327-4055 Email: grant.helms@indy.gov Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 8 of 9 PageID #: 53 9 CERTIFICATE OF SERVICE I hereby certify that on June 14, 2018 a copy of the foregoing was filed electronically via the Court’s system. Service of this filing will be made on the below via the United State Postal Service, first class mailing, postage prepaid: Robbin Stewart 4015 East Washington Street Indianapolis, Indiana 46201 /s/ Grant E. Helms Grant E. Helms (29953-49) Assistant Corporation Counsel OFFICE OF CORPORATION COUNSEL 200 East Washington Street, Suite 1601 Indianapolis, Indiana 46204 Telephone: (317) 327-4055
Jury Trial Requested The Defendants respectfully request a jury trial on all of the Plaintiff’s claims. DEFENDANTS’ AFFIRMATIVE DEFENSES 1. The Plaintiff has failed to state a claim upon which relief may be granted. 2. The Defendants are entitled to qualified immunity, or other immunity that may apply. 3. The Defendants did not violate any of the Plaintiff’s constitutional rights. 4. The Plaintiff’s claims are barred by res judicata and/or the doctrines of claim- or issuepreclusion. 5. Plaintiff’s claims under Monell, if any, are barred to the extent he has failed to properly state a claim. 6. There is no private right of action for monetary damages under the Indiana Constitution. Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 7 of 9 PageID #: 52 8 7. The Defendants are immune against Plaintiff’s state law claims to the extent Indiana Code § 34-13-3-3 et seq. applies. 8. The Plaintiff’s state law claims are barred to the extent he has failed to comply with the notice requirements of the Indiana Tort Claims Act, Indiana Code § 34-13-3-1 et seq. 9. Plaintiff’s recovery, if any, on state law claims is limited pursuant to Indiana Code § 34- 13-3-4. 10. The Defendants did not act with malice or deliberate indifference. 11. The Defendants reserve the right to assert additional affirmative defenses as discovery continues. Respectfully Submitted, /s/ Grant E. Helms Grant E. Helms (29953-49) Assistant Corporation Counsel OFFICE OF CORPORATION COUNSEL 200 East Washington Street, Suite 1601 Indianapolis, Indiana 46204 Telephone: (317) 327-4055 Email: grant.helms@indy.gov Case 1:18-cv-01487-RLY-DML Document 6 Filed 06/14/18 Page 8 of 9 PageID #: 53 9 CERTIFICATE OF SERVICE I hereby certify that on June 14, 2018 a copy of the foregoing was filed electronically via the Court’s system. Service of this filing will be made on the below via the United State Postal Service, first class mailing, postage prepaid: Robbin Stewart 4015 East Washington Street Indianapolis, Indiana 46201 /s/ Grant E. Helms Grant E. Helms (29953-49) Assistant Corporation Counsel OFFICE OF CORPORATION COUNSEL 200 East Washington Street, Suite 1601 Indianapolis, Indiana 46204 Telephone: (317) 327-4055
Thursday, September 24, 2015
notes for an article
cu article yet.
What Citizens United says about voter ID applied challenges.
part 1 voter ID and remedies.
part II CU's discussion of applied versus facial challenges
part III my involvement in indiana's voter ID litigation.
part IV suggestions for going forward.
abstract:
while there have been successes, overall the litigation campaign against voter ID has been losing more than winning, and voter ID has spread faster than it has been contained by litigation.
there has been no coordinated national campaign against voter ID, but Hillary Clinton's campaign seems to be sponsoring Marc Elias's work which is bringing a new set of challenges.
this short paper explores the problems and opportunities of facial and as-applied challenges as strategies to oppose voter ID,
and looks to Citizens United for advice.
Citizens United took an as-applied challenge to independent expenditures by a non-profit corporation, and ended up issuing very broad relief, overruling Austin and freeing corporations to spend on political campaigns.
Among the points I raised in the brief were
A) the standard of review was wrong
B) the panel completely ignored the state constitutional claims, which were substantial and supported by controlling authority.
C) the state claims could be certified to the Indiana Supreme Court.
Judge Posner denied the motion for leave to file. The court en banc split 5-5. I will never know if, had my brief been filed and read, it might have turned one vote and made it 6-4, and thus avoiding the Supreme Court's ruling in Crawford. Because the court split 5-5, the panel decision held, which was then appealed to the Supreme Court.
Judge Posner now admits he was wrong about voter ID, but no one has ever asked him if he thinks it was wrong to deny leave to file my brief.
In 2008, I filed a new suit, Stewart v Marion County Election Board. The state was notified, but declined to participate, running out its clock. The trial judge denied a TRO.
I moved to consolidate the case with League of Women Voters v Rokita, which had been filed after mine and raised some of the same issues of state constitutional law, but the Indiana Supreme Court denied this motion. The Supreme Court clerk later denied my attempt to file an amicus in LWV.
The county removed the case to federal court, where it was assigned to Judge McKinney. In my previous encounter with Judge McKinney, he had chained together 5 legal errors to dismiss a case after sitting on it for 5 years, in a ruling later found erroneous by Judge Posner in Majors v Abell I @cite both, so it was not a receptive forum.
McKinney denied a TRO and invited the state's participation. McKinney is a former co-worker of the AG's office and seems on good terms with them.
On election day in 2008 I went to try to vote at my local precinct. I was told that I could not vote, and was not offered even a provisional ballot. I then drove to Chicago to file an interlocutory appeal of the denial of the TRO. I had been told by the court's staff that I would not have to pay a filing fee for this motion, which turned out to be in error. I was still without counsel, doing this pro se. That appeal was denied in one page ruling.
I sought to amend the pleading to add the new facts of having been denied even a provisional ballot, but Judge McKinney denied that motion, and later ruled against me, cite, ruling, for example, that demanding my ID as a condition of voting was not a search for 4th Amendment purposes, and ruling that the 7th circuit had said in Crawford that voter ID was not a poll tax, to dispose of my 24th Amendment claim, although in Crawford there had been no 24th Amendment claim and its offhand mention of a poll tax was in another content altogether. I did not get an appeal in on time, due to other things going on in my life at the time.
I next filed a new suit based on the new facts at the 2008 general election, Stewart v Proffitt et al. It also was removed to federal court. Proffitt, the election official who told me I couldn't vote without ID and didnt even give me a provisional ballot, filed a false affidavit saying I was only there momentarily and left before she could hand me a provisional ballot. That was false, as I was there for about 12 minutes and we had an extensive discussion at which she was adamant that I couldnt vote. Under Indiana law one can be arrested if they linger at the polls for more than 15 minutes, and I used most of my 15 minutes. The Obama justice department has not responded to my reporting of this perjury, even after Senator Coats sent them a letter asking them to look into it. I did not make the deadline for opposing the state's motion for summary judgment, and based on the false facts and the previous ruling, judge Hamilton dismissed the case. For the 2012 and 2014 elections I tried to recruit other people to go file provisional ballots, but in the end did not succeed.
cu article yet.
What Citizens United says about voter ID applied challenges.
part 1 voter ID and remedies.
part II CU's discussion of applied versus facial challenges
part III my involvement in indiana's voter ID litigation.
part IV suggestions for going forward.
abstract:
while there have been successes, overall the litigation campaign against voter ID has been losing more than winning, and voter ID has spread faster than it has been contained by litigation.
there has been no coordinated national campaign against voter ID, but Hillary Clinton's campaign seems to be sponsoring Marc Elias's work which is bringing a new set of challenges.
this short paper explores the problems and opportunities of facial and as-applied challenges as strategies to oppose voter ID,
and looks to Citizens United for advice.
Citizens United took an as-applied challenge to independent expenditures by a non-profit corporation, and ended up issuing very broad relief, overruling Austin and freeing corporations to spend on political campaigns.
Recently I was rereading the case and for the first time caught its discussion of as-applied versus facial suits,and thought about how that applied to voter ID.
I have been involved with voter ID litigation in Indiana, failing at least so far. I will discuss what I've tried, and why it didn't work.
I then discuss how I think as-applied challenges can be used to mount a broad attack on voter ID.
This paper is a belated response to (article about voter ID as-applied lawsuits)
I then discuss how I think as-applied challenges can be used to mount a broad attack on voter ID.
This paper is a belated response to (article about voter ID as-applied lawsuits)
What Citizens United says about voter ID applied challenges.
part 1 voter ID and remedies.
part II CU's discussion of applied versus facial challenges
part III my involvement in indiana's voter ID litigation.
part IV suggestions for going forward.
abstract:
while there have been successes, overall the litigation campaign against voter ID has been losing more than winning, and voter ID has spread faster than it has been contained by litigation.
there has been no coordinated national campaign against voter ID, but Hillary Clinton's campaign seems to be sponsoring Marc Elias's work which is bringing a new set of challenges.
this short paper explores the problems and opportunities of facial and as-applied challenges as strategies to oppose voter ID,
and looks to Citizens United for advice.
Citizens United took an as-applied challenge to independent expenditures by a non-profit corporation, and ended up issuing very broad relief, overruling Austin and freeing corporations to spend on political campaigns.
part 1 voter ID and remedies.
part II CU's discussion of applied versus facial challenges
part III my involvement in indiana's voter ID litigation.
part IV suggestions for going forward.
abstract:
while there have been successes, overall the litigation campaign against voter ID has been losing more than winning, and voter ID has spread faster than it has been contained by litigation.
there has been no coordinated national campaign against voter ID, but Hillary Clinton's campaign seems to be sponsoring Marc Elias's work which is bringing a new set of challenges.
this short paper explores the problems and opportunities of facial and as-applied challenges as strategies to oppose voter ID,
and looks to Citizens United for advice.
Citizens United took an as-applied challenge to independent expenditures by a non-profit corporation, and ended up issuing very broad relief, overruling Austin and freeing corporations to spend on political campaigns.
Recently I was rereading the case and for the first time caught its discussion of as-applied versus facial suits,and thought about how that applied to voter ID.
I have been involved with voter ID litigation in Indiana, failing at least so far. I will discuss what I've tried, and why it didn't work.
I then discuss how I think as-applied challenges can be used to mount a broad attack on voter ID.
I then discuss how I think as-applied challenges can be used to mount a broad attack on voter ID.
In 2005 the Indiana legislature passed the first photo ID requirement for voting, hereinafter called voter ID.
In 2006 two cases were filed against it in federal court in Indianapolis, one by the ACLU, the other by the Democratic Party.
I expected that these cases would be successful, because voter ID raises serious constitution problems. date the district court upheld the statute under the law review standard of Burdick v Takushi.
The case was appealed to the 7th circuit. When it became apparent that the 7th circuit was unlikely to rule in time for the 2006 general election, I filed suit in state court, seeking a TRO and preliminary injunction on behalf of myself and Joell Palmer.
Palmer had been a successful plaintiff in Edmond v Indianapolis, in which drug roadblocks were struck down. Palmer viewed voter ID as a similar unwarranted search, a roadblock at the polls.
I am a member of the bar, focused on election law issues, but I would be the first to say I'm not a skilled lawyer. The story that follows is full of unforced errors on my part.
I had expected that I would be able to find competent co-counsel. Democratic Chairman Howard Dean had publicly stated that the party would fund lawsuits to overturn voter ID. No such help ever came.
The trial court denied injunction and TRO without opinion. I petitioned the Indiana Supreme Court to take up the case, skipping the court of appeals, which it can do but generally doesn't. It declined. The Court of Appeals turned down the appeal on the grounds that A) the trial court hadn't given leave to appeal, which it hadn't, and B) the denial of a temporary injunction wasn't a denial of a temporary injunction. So they court got the procedural facts wrong, but by then it was too late because the election had taken place.
The injunctive relief I had sought offer a range of options for relief:
that the ID program be halted altogether, that it be halted only in Marion County, or that Palmer and I be allowed to vote.
That case was later dismissed on the grounds that the complaint was too detailed and argumentative. That dismissal was erroneous, but I did not appeal.
At some point (date) a split 7th circuit panel led by Judge Posner had sustained the ruling below in the consolidated cases,
My next step was to submit an amicus brief to the 7th circuit, which had scheduled a vote on rehearing. In most circuits, amicus briefs are routinely accepted,and the parties routinely consent. The 7th circuit is different.
The state refused to consent. I filed a motion for leave to file, but I neglected to mention how the 7th circuit's ruling might be dispositive on my state case. That is among the few exceptions the 7th circuit allows for the filing of opposed amicus briefs.
In 2006 two cases were filed against it in federal court in Indianapolis, one by the ACLU, the other by the Democratic Party.
I expected that these cases would be successful, because voter ID raises serious constitution problems. date the district court upheld the statute under the law review standard of Burdick v Takushi.
The case was appealed to the 7th circuit. When it became apparent that the 7th circuit was unlikely to rule in time for the 2006 general election, I filed suit in state court, seeking a TRO and preliminary injunction on behalf of myself and Joell Palmer.
Palmer had been a successful plaintiff in Edmond v Indianapolis, in which drug roadblocks were struck down. Palmer viewed voter ID as a similar unwarranted search, a roadblock at the polls.
I am a member of the bar, focused on election law issues, but I would be the first to say I'm not a skilled lawyer. The story that follows is full of unforced errors on my part.
I had expected that I would be able to find competent co-counsel. Democratic Chairman Howard Dean had publicly stated that the party would fund lawsuits to overturn voter ID. No such help ever came.
The trial court denied injunction and TRO without opinion. I petitioned the Indiana Supreme Court to take up the case, skipping the court of appeals, which it can do but generally doesn't. It declined. The Court of Appeals turned down the appeal on the grounds that A) the trial court hadn't given leave to appeal, which it hadn't, and B) the denial of a temporary injunction wasn't a denial of a temporary injunction. So they court got the procedural facts wrong, but by then it was too late because the election had taken place.
The injunctive relief I had sought offer a range of options for relief:
that the ID program be halted altogether, that it be halted only in Marion County, or that Palmer and I be allowed to vote.
That case was later dismissed on the grounds that the complaint was too detailed and argumentative. That dismissal was erroneous, but I did not appeal.
At some point (date) a split 7th circuit panel led by Judge Posner had sustained the ruling below in the consolidated cases,
My next step was to submit an amicus brief to the 7th circuit, which had scheduled a vote on rehearing. In most circuits, amicus briefs are routinely accepted,and the parties routinely consent. The 7th circuit is different.
The state refused to consent. I filed a motion for leave to file, but I neglected to mention how the 7th circuit's ruling might be dispositive on my state case. That is among the few exceptions the 7th circuit allows for the filing of opposed amicus briefs.
Among the points I raised in the brief were
A) the standard of review was wrong
B) the panel completely ignored the state constitutional claims, which were substantial and supported by controlling authority.
C) the state claims could be certified to the Indiana Supreme Court.
Judge Posner now admits he was wrong about voter ID, but no one has ever asked him if he thinks it was wrong to deny leave to file my brief.
In 2008, I filed a new suit, Stewart v Marion County Election Board. The state was notified, but declined to participate, running out its clock. The trial judge denied a TRO.
I moved to consolidate the case with League of Women Voters v Rokita, which had been filed after mine and raised some of the same issues of state constitutional law, but the Indiana Supreme Court denied this motion. The Supreme Court clerk later denied my attempt to file an amicus in LWV.
The county removed the case to federal court, where it was assigned to Judge McKinney. In my previous encounter with Judge McKinney, he had chained together 5 legal errors to dismiss a case after sitting on it for 5 years, in a ruling later found erroneous by Judge Posner in Majors v Abell I @cite both, so it was not a receptive forum.
McKinney denied a TRO and invited the state's participation. McKinney is a former co-worker of the AG's office and seems on good terms with them.
On election day in 2008 I went to try to vote at my local precinct. I was told that I could not vote, and was not offered even a provisional ballot. I then drove to Chicago to file an interlocutory appeal of the denial of the TRO. I had been told by the court's staff that I would not have to pay a filing fee for this motion, which turned out to be in error. I was still without counsel, doing this pro se. That appeal was denied in one page ruling.
I sought to amend the pleading to add the new facts of having been denied even a provisional ballot, but Judge McKinney denied that motion, and later ruled against me, cite, ruling, for example, that demanding my ID as a condition of voting was not a search for 4th Amendment purposes, and ruling that the 7th circuit had said in Crawford that voter ID was not a poll tax, to dispose of my 24th Amendment claim, although in Crawford there had been no 24th Amendment claim and its offhand mention of a poll tax was in another content altogether. I did not get an appeal in on time, due to other things going on in my life at the time.
I next filed a new suit based on the new facts at the 2008 general election, Stewart v Proffitt et al. It also was removed to federal court. Proffitt, the election official who told me I couldn't vote without ID and didnt even give me a provisional ballot, filed a false affidavit saying I was only there momentarily and left before she could hand me a provisional ballot. That was false, as I was there for about 12 minutes and we had an extensive discussion at which she was adamant that I couldnt vote. Under Indiana law one can be arrested if they linger at the polls for more than 15 minutes, and I used most of my 15 minutes. The Obama justice department has not responded to my reporting of this perjury, even after Senator Coats sent them a letter asking them to look into it. I did not make the deadline for opposing the state's motion for summary judgment, and based on the false facts and the previous ruling, judge Hamilton dismissed the case. For the 2012 and 2014 elections I tried to recruit other people to go file provisional ballots, but in the end did not succeed.
