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Dec 20 (11 days ago)
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Neither of those folks has standing to sue. One has ID and did cast a ballot in compliance with the law. As to the other, refusing to show ID does not give you standing because you have no injury. She could vote in compliance with the law; she's choosing not to.
Hi Jon. I've been meaning to respond, off-list, to your email of 12/20.
First thanks for responding. Second, it looks like you have been actively litigating voter ID yourself. The TN case cased new and important arguments; I'm thinking that was one of yours.
Third, my bias is toward liberal construction of article III standing requirements.
As in Sierra Club v Morton, you need to show some particularized injury and personalized involvement. That is present here.
My discussion here is not about the merits; some would find my merits arguments weak.
We are just discussing standing.
If Helen is right that voter ID brings up non-trivial issues of constitutionality under e.g.1st 4th 14th 24th amendments and article I and II of the Indiana Constitution, the decision not to count her provisional ballot is the requisite injury.
She has a good faith belief, perhaps mistaken, that voter ID is an unconstitutional barrier to voting under whatever standard Harmon v Forssenius applied. if that's taken as true, it cannot be enforced against her or anyone.
The refusal to count her vote, in the absence of any evidence of fraud by her, is the requisite injury.
She thinks it's a severe cumulative burden on voter's rights, triggering strict scrutiny, and or that it fails the Anderson test. if the statute is void, she was harmed.
She thinks that voter ID violates the right to free and equal elections. She was not free to vote and her ballot was not treated equally. LVW suggests but does not determine that she's wrong. She has other arguments under the voter registration clause, the due course of law clause, the free speech cause.
It isn't clear if Xander has a cause of action under the voter ID statute itself, or if he then needs to tie that in to due course of law, procedural or substantive due process, free and equal elections,and so forth, but that can be done. At the moment he was turned away from the polls his cause of action accrued and became ripe. His damages are nominal, given that he later came back and voted, but nominal damage are enough,and he seeks injunctive relief because this is likely to recur, and so is not moot.
When he came back, his ID was searched. he has standing to allege a 4th Amendment and article I section 11 claim. Maybe it's a very weak claim. But he has standing. Similarly he can raise the 1st A and 24th A claims.
A third guy, Stewart (me), probably lacks standing on his own, given that he was allowed to vote without ID, but might have standing based on association with Helen and Xander,
but isn't going to raise those for preclusion reasons.
Now, I'd be the first to say that I'm not a great lawyer,and that I'm stubborn and lack objectivity. But I'm not seeing your side of the argument. Is there a best case?
You do not owe me a response; I am not out to waste your time.
But I thought I'd set out a bit about why we disagree. I have only ever lost one case on standing grounds, when we missed the appeal deadline. I have won at least one ruling on justicability at the 7th circuit. I thinks there's at least a decent argument and probablity that both the above have standing. I am less clear about whether Indiana State courts employ strict or relaxed standing rules, given that they are not bound by article III.
Anyway, had a bit of time to kill on a long ride,and I've been meaning to get back to you.
Thanks for your patience, and for what you've doing about voter ID. The TN case, if that one is yours, is very worthy of an appeal and cert petition; we dont see a lot of 26th A cases come down the pike.
