Wednesday, October 19, 2005

In the Superior Court for Marion County Indiana

Joell Palmer, plaintiff,

v. Cause Number _________
Judge _______________
Marion County, State of Indiana, J. Bradley
King, Todd Rokita, Kristi Robertson, Doris
Ann Sadler, John Doe #1-4 (Rokita employees),
Jane Doe 1-3, precinct officials, Securatex,
Jack Cottey, defendants.


Comes now Plaintiff Joell Palmer by counsel and for his first complaint for damages, injunctive and declaratory relief states as follows.
1. Introduction: This is an action to enjoin a threat to the integrity of the election process. Time is of the essence. Defendants are attempting to engage in voter fraud, by preventing voters without a voting license from voting. 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. Without duly elected government officials, the government will lack legitimacy. The open door law claim provides a basis for statutory entitlement to an accelerated docket. A motion for a TRO and preliminary injunction is filed herewith, to preserve the status quo and prevent irreparable harm.
2. The voting license scheme is challenged on a number of state and federal constitutional grounds as well as several statutory grounds. Additionally, plaintiff seeks ballot access or write-in status, seeks access to city hall, and seeks relief from threats of campaign finance enforcement against him. The statute violates Article I sections 1, 9, 11,12, 31, Article II sections 1 and 2, the First, 4th , 13th, 14th, 15th, and 24th Amendments, the Privacy Act of 1974, and the Padrone Act.
3. Jurisdiction: This court has general jurisdiction over claims arising under Indiana statutes and constitution, and federal statutes and constitution. 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.
3. Parties: Plaintiff is Joell Palmer, a voter in the tenth ward, seventh precinct of Center Township in Marion County, Indiana. He is the duly nominated candidate of the Libertarian Party for the 100th state representative district.
4. Defendant Marion County is a municipality and is the seat of government for Indiana. The State of Indiana is a co-equal sovereign entity in the United States federal system. Todd Rokita is the secretary of state. J. Bradley King and Kristi Robertson are co-directors of the Indiana Election commission who advise and coordinate, but do not directly control, the election processes of the 92 county clerks. Doris Ann Sadler is the Marion County clerk. She is not a candidate for reelection. John Doe #1-4 are employees of the Secretary of State’s office who conspired with Rokita to suppress voting by communicating the voter licensing program to potential voters. Jane Doe 1-3 are precinct officials in Ward 10, precinct 7 who prevented Palmer from voting in the spring election and intend to prevent him from voting in the fall election. Securatex is a company which conducts warrantless suspicionless searches of people who try to enter the county clerk’s office in the City-County building (city hall) in order to cast provisional votes, or for any other reason. Jack Cottey is a supervisory employee of Securatex responsible for the City-County building searches. The government officials named above are named in both official capacity, for the purposes of prospective injunctive and declaratory relief, and in personal capacity for damages. As to the federal claims, they may enjoy some degree of absolute or qualified immunity.

State Claims.
Count I.
5. The voter licensing scheme violates the right to free elections under the Free and Equal Elections clause, Article II Section I of the Indiana Constitution.
6. The following statement of facts is common to each count, and is incorporated by reference in each count below.
7. The facts are as stipulated by the parties in Indiana Democratic Party, NAACP, et al. v Rokita, http://moritzlaw.osu.edu/electionlaw/litigation/indy-dems.php . At oral argument October 17 at the 7th Circuit, Judge Posner mentioned that he did not expect a decision before the election.
8. Briefly, the 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; severalsections of Ind. Code art. 3-11.7; and Ind. Code § 9-24-16-10.
9. Plaintiff Joell Palmer was prevented from voting at the spring primary and expects to be prevented from voting in the fall election.
10. Palmer is not eligible to vote absentee. He is under 65 and present in the county.
He believes that the fall election will be invalid, unless this court acts to prevent the irreparable harm.
11. Palmer is the candidate of the Libertarian Party for the 100th state representative seat.
12. Palmer is a person who does not consent to a search, and does not waive his rights under the federal and Indiana constitutions.
13. He seeks to be able to cast his vote in the election without being subjected to an unwarranted search.
14. Palmer wants to cast a write in vote for himself, if this court does not order his name placed on the ballot.
15. If he cannot cast his vote, he is injured.
16. If his votes are not counted, he is injured.
17. Shortly before the spring election, Palmer went to the Bureau of Motor Vehicles (BMV) to see if he could get a free ID to vote with. He was told that he is not eligible for a free ID, since he already has a driver’s license.
18. For most voters, the driver’s license would serve as their voting license. Palmer’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.
19. He does not consent to a search, unless it is authorized by a valid warrant, or the search arises under exigent circumstances with some degree of probable cause.
20. His right to not consent to a search was affirmed by the United States Supreme Court in Indianapolis v. Edmond, Palmer, et al. (_ U.S. _ 2001.) The warrant requirement is well-established law than any government official should be aware of.
21. Precinct officials are less than part time, serving not more than one day a year, with minimal training, and should not be held to the same expert standards as the other government officials.
22. Palmer is personally known to the precinct officials, and there was no threat of voter fraud if he has been allowed to vote without a license. He is a registered voter who has been voting there for about 5 years, and has been a candidate. By denying him the vote, the precinct officials engaged in voter fraud, with the result that the announced election results were off by at least one vote, his. In one recent election in Palmer’s district, three votes decided the election. None of the spring races was close enough to be within the margin of litigation.
23. Voters in Marion County, by precinct, whose provisional votes were refused on the basis of failure to display a voting license include: Ellswick, James 14-6, Emmitt, Catherine WS 37, Hardley, Joyce 13-10 Harty, Douglas PE 83 Kimmick, Roberta 21-19 Palmer, Joell 10-7 Porter, Marie 18-1 Stuart, Gladys WS 51 Vann, Thomas WS 75 Walton, Kenneth 7-2 Wiggs, Augusta WS 40.
24. Not every unwarranted search is unreasonable. However, neither the Indiana nor US Supreme Courts has created an elections exception to the warrant requirement. Absent such action, no lower court or administrative or legislative body has the authority to do so.
25. Palmer, expecting that his right to vote would be denied, videotaped the process.
26. He was offered, and cast, a provisional ballot. His provisional ballot was never counted, for two reasons. First, he would have had to consent to the search of his voting license, which he is unwilling do, absent a valid warrant.
27. Secondly, he was unable to access the Marion County Election Board’s office on the first floor of the City-County building, because Securatex denies access to those like Palmer who do not consent to a search. Palmer has been unable to access the city-county building since before 2001. The unwarranted search of those who want to enter city hall is claimed to have been in response to the Oklahoma City bombing.
28. Certain warrantless searches concerning entry to certain government buildings have been upheld as either reasonable, if reasonable, or consent-based, if there is consent.
29. The Securatex screening of those who want to enter city hall has some of the characteristics of those reasonable searches, but has other characteristics which establish that it is unreasonable, and is not consent-based.
30. The screening is less invasive than a full search. Citizens are asked to remove items from their pockets which are then x-rayed. Citizens then pass through a metal detector, and may be wanded. The seizure of the person usually last less than a minute, and almost always lasts less than five minutes. There is a video monitor which partially explains the process. People are free to leave if they object in time. Before permanently seizing objects, a person is warned that the object will be taken, and they can leave.
31. A major purpose of the screening is to detect people who are bearing arms pursuant to Article I section 32: The people shall have a right to bear arms, for the defense of themselves and the State. A secondary purpose is law enforcement, to seize contraband, such as drugs or arms, as evidence for prosecution. A third purpose is to serve the heightened public safety requirements of the criminal courts, a legitimate and compelling interest to which the search is not narrowly tailored.
32. The searches are conducted in a capricious and arbitrary manner, by surly employees who lack adequate training. Sometimes one’s wallet, coat, and belt are seized and searched, sometimes not. Employees feel authorized to seize anything that might be used as a weapon or to conceal a weapon – that is, anything and everything. There is no recourse once an item is seized, at which point it will be destroyed. When asked, employees are unable or unwilling to provide any written authority or standards for the searches.
33. @ Securatex memo as exhibit.
34. Plaintiff has no objection to these search procedures as to the East wing of the building that houses the criminal courts, recognizing the heightened security needs for these areas. He objects to the 2000 expansion of the search to include the rest of the building, 25 floors of offices including the Election Board and the Council chambers where nominally-public meetings are held.
Count II.
35. By denying the vote to Palmer, 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 right to an equal election. An election is equal where everyone’s vote counts the same, and everyone’s vote is counted. His vote has not been counted, as to the spring election, and will not be counted in the fall, unless the Court acts.
36. Palmer has standing, as a voter, citizen, and candidate, not only to insist that he be allowed to vote, but that others be allowed to vote for or against him, and for or against the candidates of his party which whom he associates politically.
Count III
37. Plaintiff, and each other Indiana voter who is properly registered, has a vested right of registered voter to vote per Art. II sect. 2. His right to vote was violated when he was denied a ballot and his provisional ballot was not counted.
Count IV
38. Palmer’s right to be free from unreasonable search under Art. I section 11 was violated when, in retaliation for his refusal to consent to a search, he was denied the vote.
Count V
39. Palmer’s right to be free from unreasonable seizure was violated when, at the point at which he refused to display a voting license, he was prevented from proceeding forward to the voting booth to cast his ballot. Art. I section 11.
40. Usually a seizure of the person involves a person being prevented from going anywhere. Sometimes, as here, a person is seized, within the meaning of section 11, when they are prevented from going somewhere where they have a right to go. Here, he had a right to proceed forward to the polling place to cast his vote, but was detained from doing so.
Count VI
41. Art I section 9, the free interchange of opinion clause, is one of the Indiana Constitution’s protections of free speech. While it is well established that voting is speech protected by the first amendment, it may be a case of first impression whether voting is speech of the sort protected by section 9. We know that section 9 provides for heightened protection of political speech, such as what Colleen Price said to the police officer.
Count VII.
42. Art. I section 1 protects the right of the people to alter or abolish the government. Generally, free and equal elections are the method by which this can be accomplished in a calm and orderly manner. Palmer has the right to attempt to oust Rokita and his ilk from the government by voting, and by running for office. When Palmer is prevented from voting, and from having his votes counted, his rights under this section are infringed, even if he retains other means by which he can alter or abolish his oppressors. Section 1 also grants a right of liberty, which is infringed here. Section 1 should be read in harmony with the rest of the Indiana constitution. The whole may be more than the sum of the parts.
Count VIII
43. Art 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 have been found to protect voting rights.
44. Section 12 also states that the courts shall be open and provide a remedy for wrongs. This disposes of claims that the rights enumerated under the Indiana Constitution are not self-enforcing or are unenforceable as political questions.
Count IX
45. Art. I Section 31, Petition and assembly, was violated when Palmer was prevented from voting.
Count X.
46. Article I Section. 37 prevents involuntary servitude. A similar clause in the federal constitution has been held to prevent badges of slavery. Jones v Meyer. Some Indiana residents, rightly or wrongly, perceive driver’s licenses, aka voter licenses, as indicating consent to be pervasively regulated, to the extent of constituting involuntary servitude. For these reasons they decline to obtain or display voting licenses, which they regard as badges of slavery. Some of these people already do not vote, but others will be deterred from voting if a badge of slavery is required. Palmer believes this is a content-specific invidious discrimination against his most likely block of voters – those who are aware of, and value, Indiana’s heritage of liberty.
Count XI
47. Palmer, above, has expressed his objection to being denied access to the City-County Building. In addition to wanting to be able to cast his vote, he wants to have access to the City-County building in order to attend public hearings at the City Council and other boards, such as the election board. The Open Door law, IC 5-14-1.5, may provide him a right of access to such meetings, which is violated when he is denied access to the building as retaliation for refusal to consent to a search. The Open Door law is somewhat ambiguous on this point, and would require interpretation from the court. If the statute does not open the doors of city hall to Palmer and others, it is misnamed.
Count XII.
48. Palmer was nominated by the Libertarian Party as its nominee for state representative district 100. He was not personally present at the state convention to be nominated by the convention, so he was, without objection, designated by the state chairman shortly thereafter. His paperwork was submitted to the election division before a June 30th deadline. On or about July 3rd, the election division disqualified palmer and about 10 other candidates, for the stated reason that the party chair has neglected to file a notice of intent to nominate ten days before the deadline. This requirement is new, has never before been enforced, and applies only to Palmer’s party. Palmer and the party had constructive notice, but no actual notice. The requirement, so far as we know, serves no legitimate, strong, compelling, or overriding state purpose. While, had Palmer had actual notice, the burden of this regulation might have been minimal, under these circumstances it severely burdens his ballot access and voting rights and associative rights.
49. That was July; this is October. Perhaps his ballot access claim is time-barred by laches. At a minumum, the lateness of the hour supports a finding that the burden on defendants, to revise the ballots or hold a new election, is greater than it would have been had Plaintiff come to court sooner. Plaintiff is neither completely indigent, nor wealthy enough to afford paid counsel. He is relying on pro bono efforts, once his party had exhausted the available funds and decided not to litigate the issue themselves.
50. The timing of the voter licensing part of the case is due in part to the informal announcement by Judge Posner, at oral argument in Democratic Party v Rokita, that no decision is likely before the election. Plaintiff had hoped that the Rokita litigation would provide relief in time for the fall election. In each other state, GA, MO, AZ, where voter licenses were tried, courts have acted promptly to enjoin such regulations.
Count XIII [@unnumbered, needs renumbered, 50.5]
The election division, in finding that Palmer and other candidates would be denied ballot status due to a clerical error by the party chairman, also found that he was too late to register as a write-in candidate, and plans not to count the votes of those who write in the Palmer’s name. Palmer has continued to actively campaign, and plans to write in his own name, and expects that others will do so, if he is denied ballot status by this court.
The right to vote for the candidate of one’s choice is essential to free and equal elections and to due process and equal protection. Paul v Indiana Election Board, and see Burdick v Takushi. Indiana sets a June deadline for write-in candidates to register, which impermissibly infringes on this right. There is no state interest in such an early deadline, either on its face or here as applied to Mr. Palmer. The write-in vote protects against just these sorts of problems, where a clerical error or early deadline prevents a legitimate candidate from obtaining ballot access. The election division’s decision is arbitrary and capricious and severely burdens the voting rights of Palmer and his party and his supporters.
Count XIV
51. Palmer is the nominee of his party in a state representative race, even though the state Election Division refuses to allow him on the ballot and refuses to allow his write-in votes to be counted. Ordinarily we refer to a nominee as a “candidate.” However, for the purposes of enforcement of the Indiana Campaign Finance Act, IC 3-9, “candidate” is a term of art defined by statute, IC 3-5-2-6 (b.) "Candidate"
(b) As used in IC 3-9, an individual becomes a "candidate" when
the individual, the candidate's committee, or a person acting with the
consent of the individual:
(1) receives more than one hundred dollars ($100) in contributions; or
(2) makes more than one hundred dollars ($100) in expenditures.
52. Based on his past experience of being threatened with large fines under the act, at a time when he has not raised or spent $100 to become a candidate within the meaning of the act, and on past experience of his associates being fined when they did not appear on the ballot, see Becky Majors et al v. IEC, he is experiencing the chilling effects of fearing he may again be threatened with fines for which he has no legal liability. This count names defendants solely in their official capacity for prospective declaratory relief.
He relies on the text of the statute, interpreted in light of the constitutional provisions cited above and below.
Federal Claims:
@@@ stopping here for now. Got a lot done. 7:15 Wednesday. Resumed 11 am thurs.
Count XV
53. Palmer’s right to vote under the First Amendment is violated when he is prevented from voting for lawfully refusing to consent to a search of his voting license. 54. While the First Amendment is self-enforcing, ala Bivens, 42 USC 1983 et seq. vests this court with jurisdiction and authority to decide this issue, and other federal claims below. 42 USC 1988 provides for the award of reasonable legal fees and costs.
Count XVI
55. The voting license scheme violates the right of privacy implicit in the First and Fourteenth Amendments.
Count XVII
56. The voting license scheme violates the right of Palmer and other voters to be free from unwarranted unreasonable searches and seizures under the Fourth Amendment. When he was asked to produce ID prior to voting, he asked to see the official’s warrant authorizing such a search. An unwarranted search is presumed unreasonable, outside of clearly established judicial exceptions not applicable here. Whether or not a magistrate would have granted a general warrant for a suspicionless search of millions of people, in the absence of any articulable probable cause, need not be answered. It is enough here that no warrant was applied for. On a previous occasion when Palmer relied on his Fourth Amendment rights, he was thrown on the hood of a car and told “You have no rights!” On this occasion, the retaliation was less dramatic. He was simply prevented from casting his ballot at the polls, severely burdening his fundamental rights.
Count XVII
57. Palmer’s right to due process of law under the Fourteenth Amendment was violated when he was prevented from voting. The Fourteenth Amendment incorporates to the states those rights which are fundamental to ordered liberty. The right to free and equal elections is among these.
58. Palmer’s right to equal protection of the laws was violated by the voter licensing scheme, which is a poll tax of the sort found to violate equal protection. This right is clearly established by Harper v Virginia Board of Elections. We find no case, other than the now vacated Rokita district court decision, which upholds any poll tax or voter licensing scheme.
Count XIX
59. Palmer’s right to vote in a federal election may have been violated in the Spring election. (We don’t know whether he sought to vote in the congressional primary, or only in the local nonpartisan races. Due to his right to a secret ballot, counsel hasn’t asked who he sought to vote for or against.) His right to vote in a federal election will be violated in the Fall election, if not remedied. The right to vote in federal elections is one of the privileges and immunities of federal citizenship protected by the Fourteenth Amendment. Twinings v New Jersey.
Count XX
60. Voting licenses, aka internal passports, aka driver’s licenses, aka national identify cards, are a badge of slavery, prohibited by the Thirteenth Amendment and the Padrone Act of 1874, federal legislation which implements the Thirteenth Amendment. At the time of enactment, the Thirteenth Amendment was concerned primarily with slavery by private parties. During the Twentieth century, private sector slavery was reduced, but enslavement by governments became a growing threat. Various identification schemes were used as badges of slavery. In Germany, persons enslaved by government were issued badges such as a yellow star or a pink, black or red triangle, and an identification number tattooed on their arms. In South Africa, a passbook law required non-whites to carry an internal passport at all times, even in the shower. The current trend is towards microchips, either embedded in government ID or under the skin. Whether or not voting licenses really are badges of slavery, they are perceived that way by some citizens, who will refrain from voting if the cost is an infringement on privacy and security. At a minimum, such licensing greatly enhances the risk of identity theft, raising real and perceived costs of voting. With 900 precincts to staff, the county clerks are unable to screen all election workers to eliminate the possibility that an election worker would be engaged in identify theft. This claim is a case of first impression, and is not a clearly established right.
Count XXI
60. The voting license scheme is a poll tax prohibited by the Twenty-fourth Amendment, clause 1. The constitution prohibits poll taxes, whether for the rich or the poor. An indigency exception is no defense to a poll tax allegation. The voting license scheme, unlike the 1950s era poll taxes, does not explicitly require a cash payment. But for some voters, the documents required to obtain a voting license come with a price tag. Additionally, the scheme is replete with catch-22s that make it difficult or impossible to obtain the documents. 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.
61. While Palmer already has such a voter’s license, he has standing, as a candidate and as an activist in a political party, to raise this concern, so that voters can cast their votes for him and for the Secretary of State candidate he supports. (Hint: not Rokita.)
Count XXII.
62. The voter licensing scheme violates the privacy Act of 1974, 5 USC 552a note 7. Many potential voters have a social security number displayed on their driver’s license. Not all do; it is optional. Many of these potential voters have no other acceptable government issued identification. At the time they obtained their driver’s licenses, they were not warned that the license might be later misused as a voting license.
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. The voter licensing scheme doesn’t do any of this. Marion County and the State of Indiana tend to be lax about compliance with the Privacy Act. As in count XXI, Palmer has standing to raise the issue because it may deter his voters.
63. 5 USC 552a Note 7. reads as follows:


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.
'(2) the (The) provisions of paragraph (1) of this subsection
shall not apply with respect to -
'(A) any disclosure which is required by Federal statute, or
'(B) the disclosure of a social security number to any Federal,
State, or local agency maintaining a system of records in
existence and operating before January 1, 1975, if such
disclosure was required under statute or regulation adopted prior
to such date to verify the identity of an individual.
'(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.'
See Doe v Chao, (_U.S._ 2003)

Relief sought:
He asks that this be given accelerated handling on the docket, and be heard, at least preliminarily, prior to the election.
For each count above, Palmer 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 Hoosiers.
As to Kristi Robertson in her personal capacity, he seeks only nominal damages of $1.
He seeks a temporary restraining order so that the election can take place undisturbed.
He seeks temporary and permanent injunctive relief, restraining the enforcement of the voter licensing scheme, and directing election officials to place his name on the ballot, if this is feasible, or to order a new election, or, minimally, to direct the county clerk and election division to allow write in votes to be cast and counted.
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 witness fees.
In the event that this case uncovers willful unlawful conduct by state officials or employees, he asks that the court use its discretion to make referrals for criminal or ethical investigatory bodies if appropriate.
He asks for an accounting of any federal HAVA funds used to promote the unlawful voting license scheme, or to promote Rokita’s re-election, so that those funds can be returned to the federal treasury.
He asks for all other relief as is in the interests of justice.
Respecfully Submitted,
Robbin Stewart. #47174-53
P.O.Box 164
Cumberland IN 46229-0164

I verify that I have read the complaint and believe the allegations to be true.

Joell Palmer

Palmer project:

List of needed documents:


Motion for tro and injunction.

Brief in support

Pro hoc vice

Joell Affidavit.

Civil appearance form

1.Outline of complaint.

2. Notes re motion for injunction

Outline of complaint

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