why did this blog get 60 hits yesterday? i havent looked at in a year.

cu article notes/draft.

moved draft to an openoffice file. do not edit this one.

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: introduction

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. Plaintiffs have failed to find a consistent winning strategy.

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. [move or delete]

This short paper explores the problems and opportunities of facial versus 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 noticed 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)

What Citizens United says about voter ID applied challenges.

part 1 voter ID and remedies.

The first case against voter ID was in Missouri, Weinschenk v (state?), in which the state supreme court ruled against voter ID based on the free and equal elections clause of the state constitution. State constitutions  continue to be a source of relief from voter ID, although not unanimously.
In 1994 I had written my llm thesis on the free and equal election clause of state constitutions, so I felt some vindication with Weinschenk. cite.
GA, PA, WI, Lake v Purdue, Applewhite v State, Frank v Walker,
MI, IN, LWV v Rokita.

The next major case was Crawford v Marion County Election Board, consolidated with Democratic Party v Rokita. The district court and the 7th circuit upheld Indiana's voter ID under the lax review standard of Burdick v Takushi. The panel split 2-1, and on a motion for rehearing the circuit split 5-5. The case  then went to the Supreme Court, which split 3-3-3. Three justices, Scalia, Thomas and Alito, would have found voter ID constitutional under Burdick. Three justices, Souter, Breyer and Ginsberg, would have found voter ID unconstitutional.  The controlling opinion was by Justice Stevens, joined by Roberts and Kennedy, and ruled more narrowly,
that the plaintiffs had brought a facial challenge while conceding that the statute was constitutional for up to 99% of voters, and thus their claim fails, under Salerno and Washington State Grange. 
Crawford took the Anderson v Celebrezze balancing test which had previously only been used in ballot access cases, and applied it to election cases generally. [possible footnote setting out anderson test.]

 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. Citations omitted. Anderson v Celebrezze, 460 U. S. 789-790

Paul Clement as solicitor general argued in support of voter ID. By failing to bring a followup case during the eight years of the Obama adminstration, opponents of voter ID have missed an opportunity to be supported instead of opposed by the AG's office. We don't know who will be president or Attorney general in 2017. It is not clear if a new case could make it to the Supreme Court before then. The Texas and North Carolina cases (did texas deny cert already?) may be next in the pipeline.

 
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.

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, for myself, Palmer,and Douglas Page, who lacked ID and did not vote. 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 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.
 At the Supreme Court, Palmer and I joined with the Cyber Privacy Project and others in submitting an amicus brief.. https://www.brennancenter.org/sites/default/files/legal-work/fa3a4f2682405f5e42_jbm6bhn9i.pdf.
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. Frank v Walker, dissent to denial of rehearing, (2014) banc. http://moritzlaw.osu.edu/electionlaw/litigation/documents/Frank101014.pdf
In 2008, I filed a new suit, Stewart v Marion County Election Board. The state was notified, but declined to participate, running out its 30-day 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.
http://electionlawblog.org/archives/stewart.pdf

http://www.theindianalawyer.com/plaintiff-loses-federal-challenges-to-voter-id-law/PARAMS/article/22087

http://in.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20081021_0000356.SIN.htm/qx

   
I next filed a new suit based on the new facts at the 2008 general election, Stewart v Proffitt et al. 
https://dockets.justia.com/docket/indiana/insdce/1:2010cv01548/31475
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.   

http://lawprofessors.typepad.com/conlaw/2010/04/the-latest-challenge-to-indianas-voter-id-law.html
http://lawprofessors.typepad.com/conlaw/2010/04/the-latest-challenge-to-indianas-voter-id-law.html#footer

http://system.uslegal.com/u-s-constitution/amendment-xxiv-poll-tax-1964/