Petition for Writ of Certiorari — Gallagher v. Indiana State Election Board

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FILED

92-GPQ © |, wove7 9%

No. 92- > FABRE O8 THE CLERK

In The

SUPREME COURT OF THE UNITEDSTATES

OCTOBER TERM, 1992

STEPHEN M. GALLAGHER and KEVIN

MOUSER, individually and as

representatives of all other

individuals similarly situated,

Petitioners,

INDIANA STATE ELECTION BOARD;

ALAN MILLS, JOSEPH DONNELLY;

and DONALD COX, in their official

Capacities as members of the

INDIANA STATE ELECTION BOARD;

MARION COUNTY ELECTION BOARD;

MARION COUNTY BOARD OF VOTER

REGISTRATION,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

PETITION FOR WRIT OF CERTIORARI

John Wood *

BAMBERGER & FEIBLEMAN

500 Union Federal Building

Indianapolis, IN 46204

(317) 63931352

Richard A. Waples

INDIANA CIVIL LIBERTIES UNION

445 N. Pennsylvania Street, #911

Indianapolis, IN 46204

(317) 635-4059

Attorneys for Petitioners

* Counsel of Record

QUFSTIONS PRESENTED

bs Is a state electoral system

which disfranchises thousands of

properly reaistered voters who move

within the state after the close of

pre-election of registration a

sufficiently severe restriction on voter

eliaibility to reauire justification by

a compellina state interest?

2 Do those provisions of the

Indiana Flection Code which disqualify

properly registered voters who move

their residence across a county line

within the state, within thirty days

before an election, from voting for all

offices and ballot propositions except

Presicent and Vice President, and which

permit properly registered voters who

rove within a county during the same

time period, or who have moved outside

the United States at any time, to vote

for all federal, state and local

offices, violate the Equal Protection

Clause of the Fourteenth Amendment?

Je Co those provisions of the

Indiana Election Code which require a

properly registered voter who changes

residence to a different electoral

precinct within a county, within thirty

Gays before an election, to obtain a

special affidavit from the county voter

registration office before the day of

election as a condition to eligibility

to vote for all offices or ballot

propositions at that election, but

permit the same voter to vote only for

President and Vice President of the

United States by signing a similar

affidavit on election day at the voting

precinct where the voter is registered,

unreasonably burden the voter's

fundarental right to vote without

sufficient justification, in violation

of the EFaual Protection Clause of the

Fourteenth Amendment?

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED...---+eeeeeeeeeres 1

TABLE OF CONTENTS... ---+eeeeeeeeeee88 iil

TABLE OF AUTHORITIES... ---eeeeeeeeeee® 4

OPINIONS OF COURTS... --eeeeeeeeeeeeeers 1

GROUNDS FOR JURISDICTION OF

WETS COURT. cccccssccssenesereceevesses 1

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED...--+eeeeeeeeeee0% 2

STATEMENT OF THE CASE...---+eeeeeeeeees 3

bs Indiana Election Laws

Applicable to VoterS...-+-++-- 3

, Plaintiffs and Their

PU ROBOR . caress everseeseseseses 10

2% Decisions of the State

PEPER. cc ce cece seen eeeseseese 14

4. Federal Constitutional

Issues Presented in

State CourtS..cccccccccsereecs 22

REASONS FOR GRANTING THE WRIT....----- 25

1. The Indiana Supreme Court's

Application of the Rational

Basis Standard of Review

to Disfranchisement of

Properly Registered Voters

of the Relevant Political

Unit Conflicts with

Controlling Precedents

of This Court....ceeeeeeeeees 25

The Eligibility Requirements

for Intra-County Movers

Fails the Most Deferential

Rational Basis Test Utilized

by This Court in Voting

RIGHTS COBOR. ccccesscccncevesdl

The Indiana Supreme Court's

Decision That Disfranchise-

ment of Late Moving Voters

Does Not Violate the Equal

Protection Clause Conflicts

Directly with a Decision on

the Same Issue by the New

Jersey Appellate Court....... 43

Denial of Voting Rights

to the Many Thousands of

voters in Indiana and Other

States Which Have No

Adequate Provision to

Preserve Voting Eligibility

for Registered Voters Who

Move Within the State After

the Pre-election Cutoff

Date is an Important and

Substantial Issue Arising

Under the Equal Protection

Clause on Which This Court

Should Provide Guidance...... 46

TABLE OF AUTHORITIES

Cases

Afran v. County of Somerset,

244 N.J.Super. 229, 581 A.2d

1359 (1990)... cece ever ercveecees 43, 44, 45

American Party of Texas v. White,

415 U.S. 767 (1974). .ccceecvccceceeseerces 32

Anderson v. Celebrezze,

460 U.S. 780 (1983).-.--e-eeee 26, 272 28, 33

Ball v. James,

451 U.S. 355 (1981)... cee ne rece erececes 33

Barilla v. Ervin,

886 F.2a 1514 (9th Cir. 1989)..---eeeeees 45

Bullock v. Carter,

405 U.S. 134 (1972) ccc ccs eccceecevceces 32

Burdick v. Takushi, 504 U.S. >

119 L.Ed.2d 245 (1992).-ceeeeeees 25, 28, 29

Burns v. Fortson,

410 U.S. 686 C1ISTS)cccveseasecsssevcesess 35

Carrington v. Rash,

380 U.S. &9 BS. Up Pre re reer ee.

Cipriano v. City of Houma,

395 U.S. 701 (1969)... eee eee reece eces 31, 40

City of Cleburne v. Cleburne

Living Center, 473 U.S. 432 (1985).....-. 39

City of Phoenix v. Kolodziejski,

399 U.S. 204 (1970). cece eee cececes 31, 42

Dunn v. Blumstein,

i See PR 5) Bet be 2 eee LS, i6¢ 24s 29

30, 33+ 36, 43

Evans v. Cornman,

ee. Cee Cee PO ls thé eee eee eee es 31, 34

Harman v. Forssenius,

ss P+ BSS | reer eee ee eee 42

Harper v. Virginia Board of

BA@CciOnes, 363 U.S. 663 (1966) .scscccscces 31

Hill v. Stone,

3 So Fe. , ek 92S Pe ee eee Sie oa

Holt Civic Club v. City of

Tuscaloosa, 439 U.S. 60

bog, rrr rr Te Tre ers 18, 28, 29, 33, 34

Illinois State Board of Elections

v. Socialist Workers Party,

a Mas ETS CAPT OR ee cence s sen eceees 32, 40

Kramer v. Union Free School District

is toe S29 Usbe. S2L LESSF) eccoce 3G, 31, 34

Lubin v. Panish,

> bt Se, TR . AL cS PP rr re 34

Marston v. Lewis,

) OS Ra ys BO. yh) Pe ee ee ee ee 35

McDonald v. Board of Election

Commissioners of Chicago,

Deus Oe CAPOT hk bee es 6046 hekee eke kes 33

Moore v. Ogilvie,

Se Wes SAS CEPOR Ds cuenta eenceeeuscineas 32

Norman v. Reed, 502 U.S. »

ee Cee ee Tak «EROO2) 6. ccckcxaas $7; 26. 2

O'Brien v. Skinner,

EE Uees SEO CEST RIK soe oe eee eRe ens er eres 39

Rosario v. Rockefeller,

BIG Uslke Pod CLO Si ete ee eseeeseneessecees® 33

Salyer Land Co. Vv. Tulare Lake Basin

Water Storage District, 410 U.S. 749

BE sb) err kd hd ed dated 29

Tashjian v. Republican Party of

Connecticut, 479 U.S. 208 (1986)..-+++--- 28

Constitutions, Statutes and Rules

Federal Statutes

26: U.8.C. BLAS cc cck sc seecenseeseveesee ees 2

42 U.S.C. §1973£FE et SEQu--eeeeerrerecces 10

AD H. Bc, SLOSS. cccacrcssecssesevesess y Poe se

Indiana Constitution

Article 2, Section 2..---eeeeeeeeers 2s Se ae

Article 2, Section 14...--++seeeeerrrrs 1, 3

Indiana Statutes

Ind. Code 3-5-2-40...-ceeecerereresece” 3, 4

Ind. Code 3-6-5-14.---ceeeereresercreces 1,

Ind. Code 3-7Fo-3-l.owecccccesccserseeeere® 3% 2

Ind. Code 3-7-3-2-eeeccccseceserscrsee® 3. 3

Bs COGR S779 359 0 cee cee nseseseass Jy 3, 35

ENG. COGS SF s-Cecccti ast csvenseccvsees 3, 6

EG. COGS 2-8 —Gin rn ccaescenesvsecsece 2, 7, 23

ENG s COGR F*7 “KF Fc ccccectescssveesessene sy §

NG. COGS S$ 1 -G- 1s cccdossesweteavssss 3, 5, 9

Ind. Code 3<7-8-2.. css. Ze Se GU, Ady 144 23

ERG « COGR 2° 7-B-is.cccdctesevrvisarsesas 3, 9

SRG, GOS J-LL Li Seececsesecsetrdecsecdcay de 4

Ind. Code 3-11-3-17. Perro Trees 3, 6

ENG. GOGO 2°21 -4°8i.cc ch oes hese ee 408 Oe 3, 10

a ee! Me ee eee ee ea ee ee ee 3, 10

SO « COR S* LLB Zis an ccenesaeeneseen 2, 6, 9

Other Statutes

Tenn. Cogs Anh. G27“ LSte) cs ccwcekerweee 36

Rules

SUpTeme COULt RULE Lh Liss csccdoasstersevaes 3

Tadiens Serial Wate Bhcocks kad owdeinwkese 13

CPINICNE CF COURTS

The opinion of the Supreme Court of

Indiana in this cease, App. 1-30, is

reported at 598 N.F.2d 510 (1992). The

opinion of the Court of Appeals of

Indiana, Second District, App. 63-82, is

reported at 579 N.F.2d 649 (1991). The

fineinas of fact, conclusions of law and

Gecision of the Marion Superior Court

Room 1, App. 31-62, is not reported.

CPOUNDS FOR JURISLPICTION OF THIS COURT

The decision and judgment of the

Supreme Court of Indiana sought to be

reviewed was entered August 28, 1992.

No petition for rehearing was filed.

This Court has jurisdiction to review

the final judgment of the Supreme Court

of Indiana, which decides the validity

of statutes of Indiana challenged as

repugnant to the United States

Constitution, pursuant to 28 U.S. Code

€1257.

STATUTES AND

CONSTITUTICNAL PRCOVISICNS INVOLVED

This case arises under the Equal

Protection Clause of the Fourteenth

Amendment to the United States

Constitution, as it applies to certain

provisions of the Indiana Constitution

and Ineiana Flection Code. The

principal state constitutional and

statutory provisions involved are

Article 2, Section 2 of the Indiana

Constitution, and Indiana Code §§3-7-4,

2=-7-8-2 and 2-11-8-2.

In acdition, certain other

provisions of the Indiana Constitution

and Ineiana Election Code are necessary

to an understanding of the context in

which the issues in this case arise, in

light of the relevant parts of Indiana

election procedures. Those provisions

are Article 2, £§14 of the Indiana

Constitution, and the following

provisions of the Indiana Election Code:

Ind. Code &§2-5-2-40, 3-6-5-14, 3-7-3-l,

The full text of each of the

foreaoinag statutes and constitutional

provisions is contained in @ separate

appencix, pursuant to Rule 14.1(f£). The

text of each referenced Election Code

section appeers in numerical order et

App. @2-]06.

CTATFMENT OF THE CASE

}. In@iane Election Laws Applicable to

Voters.

The basic eligibility requirements

for voters in Indiana are stated in

Article 2?, Section 2 of the Indiana

Constitution:

"Every citizen of the United

States, of the age of 18 years

Or more, who has been a resident

of a precinct 30 days

immeciately preceding such

election, shall be entitled to

vote in that precinct."

In Ineiana a "precinct" is a

geoaqraphical area established solely for

the purpose of conducting elections,

Gefined in the Indiana Election Code as

"a subdivision of a county or township

established for election purposes."

Ind. Code 3-5-2-40. The boundaries of a

precinct are established by the county

executive based on census blocks and,

with minor exceptions, must be drawn to

contain no more than 800 voters, without

crossing the boundary of any

governmental unit or legislative

Gistrict. Ind. Code 3-11-1.5, sections

3, 4 and 5.

The Indiana Constitution authorizes

the General Assembly to provide by law

for the registration of aualified

voters. Article 2, Section 14. The

Indiana Election Code establishes

reaistration periods for new

registrations Or transfers within a

county, ending on the 29th day before

the @ate of any primery, general or

municipal election. Ind. Code 3-7-3-5.

Registration records are organized by

precinct, Ind. Code 3-7-3-l, and once

reqistered in 2a precinct the voter is

not reavired to register again for

subseavent elections so long as the

yoter resides at the same address. Ind.

Code 2-7-3-2. Rowever, upon changing

residence the voter must transfer the

voter's registration to the new address

durina the period of registration. Ind.

Code 2-7-@8-1; 3-7-8-2. The County Board

of Voter Registration or Clerk must

prepere a list of registered voters for

each precinct in the county no later

than ten days before an election, Ind.

Code 2-7-7-9, and the County Election

-Board, which is responsible for the

actual conduct of any election in

Indiana, Ind. Code 3-€-5-14, prepares

po)] lists with the names and addresses

of all registered voters by precinct,

for use in the election. Ind. Code

3-11-3-17.

To be entitlede to vote in any

election, a voter must be properly

registered in the precinct in which the

voter resides. Ind. Code 3-7-3-6.

Regardless of the precinct of

registration, the voter may vote only in

the precinct where the voter resides on

the day of election, with certain

specified exceptions. Ind. Code

3-11-8-2. Two of those exceptions are

at issue in this case.

One exception, Ind. Code 3-7-4,

applies only to voting at a general

election for electors for President and

Vice President of the United States. If

the voter moved from an Indiana precinct

in which the voter was properly

registered, within 30 days before the

election, and cannot meet the residency

reauirements of the voter's new home,

the voter may vote at the former

precinct in person or by absentee

ballot, by signing a special affidavit

showing the aualifying change of

residence, either before election day at

the office of the County Clerk or Board

of Registration, or at the precinct of

former residence on election Cay.

The second exception applies to

voters who move to a different precinct

within the same county within 30 days

before an election, and permits those

voters to vote at the precinct of former

—

residence, where the voter is properly

registered, for all offices or

propositions to be voted on at the

election. A voter desiring to vote

under this exception must sign a special

affidavit requesting transfer of

recistration after the election, at the

office of the Clerk or Board of

Registration, no later than 4:00 p.m. on

the Monday before election day, and

furnish a copy of the affidavit to the

proper precinct election board (or

attach it to the voter's absentee

ballot, if eligible to vote absentee).

Inc. Code 2-7-8-2(c)-(e). This

procedure is not available to a voter

who moved to a different county in

Indiana.2/

A third exception, not directly

referenced in Ind. Code 3-11-8-2,

applies to voters permanently residing

outside the United €tates who were

gualified voters in an Indiana precinct

before leaving the United States. Those

voters are eligible to vote by absentee

ballot for all offices and propositions

on the ballot in the precinct where the

i/ Notwithstanding the general

requirement that a voter changing

address must transfer registration to

the new address, Ind. Code 3-7-8-1l, if

the voter's new address is within the

sare precinct, the voter may vote at

that precinct without obtaining a

pre-election transfer affidavit from the

reaqistration board, by writing the

voter's correct address on the poll list

at the precinct on election day. Ind.

Code 3-7-8-15.

(EOE

voter resided before moving overseas.

Ind. Code 2?-11-4-8, 3-11-4-9.2/

7 Plaintiffs and Their Classes.

Plaintiff Gallagher changed his

residence from Marion County, where he

was e@ properly registered voter, to

acjacent Hendricks County in Indiana

less than 30 days before the November,

198@ general election. Local election

officials advised him that he was

ineligible to vote-in that election,

except for presidential electors.

Gallagher's complaint challenged his

dGisfranchisement under both the state

constitution and the egual protection

clause of the Fourteenth Amendment. His

rotion for preliminary injunction was

2/ Federal law requires that states

provide a procedure whereby overseas

residents can vote for federal offices,

but does not apply to state or local

elections. 42 U.S. Code §§1973ff

through 1972ff-6.

denied on November 4, 1988. After the

election, Gallagher filed an amended

corplaint, on behalf of a class of

voters similarly situated, requesting

injunctive and declaratory relief, plus

@amaaes for denial of his right to vote

for federal offices.

Plaintiff Mouser moved to a

different precinct within Marion County

within 30 days before the November, 1988

genera] election. After unsuccessfully

attempting to contact election officials

by telephone to inguire about procedures

for voting, Mouser visited the Board of

Registration office in person on the day

before the election, and was told that

it was too late for him to preserve his

general voting eligibility at his

; ; 3

precinct of former residence. 2/ He

completed an affidavit of change of

residence for presidential voting only,

anc voted at his former precinct for

Presicent and Vice President but no

other offices.

After the election Mouser moved to

intervene as a plaintiff in this action,

and submitted an intervening complaint

challenging the application to him, and

Other similarly situatedc voters, of the

intracounty transfer provisions of Ind.

Code 3-7-8-2, under both the State

Constitution anc the Fourteenth

Arendment equal protection clause. His

motion to intervene was granted on

February 21, 1989.

3/ In 1988 Ind. Code 3-7-8-2(c) required

that the request for transfer affidavit

be submitted to the Board of

Registration no later than the Friday

before election. In 1991 the statute

wes amended to its present form.

————————aaa———————

The trial court certified the case

as a class action under Indiana Trial

Rule 23, and defined subclasses A and B

as follows:

"Cubclass A [the Gallagher

class] consists of all persons

who are residents and registered

voters in Indiana and who

changed their residence within

30 days prior to an election

from a precinct in one county to

a precinct in a different county

within Indiana.

Subclass B [the Mouser class]

consists of all persons who are

residents and registered voters

in Indiana and who changed their

residence within 30 days prior

to an election from one precinct

to another precinct within the

same county in Indiana, and who

fail or are unable to comply

with the reguirements of IC

3-7-8-2 as a condition to

eligibility to vote in the

precinct from which they moved."

Undisputed evidence at trial, based

on official census reports and expert

testimony, established that

approximately 35,000 Indiana registered

voters would move from their precinct of

residence within 20 days before any

election, and therefore would

potentially be within the score of

Subclasses A and P as defined by the

court. More than 25,000 registered

voters would be likely to have moved

within their county of residence, and

epproximately 8,900 registered voters

would be likely to have moved from one

courty to another in Indiana, within 30

Gays preceding an election. Moreover,

popplation trends evidence increasing

mobility. Nevertheless, in 1988 only

4.23 percent of the estimated number of

affected registered voters in Marion

County preserved their voting rights in

that election by complying with the

procedures required under Ind. Code

as Decisions of the State Courts.

The Marion Superior Court entered

its Findings of Fact, Conclusions of Law

and Judgment on April 6, 1990. The

court, efter reviewing the history of

Article 2, Section 2 of the State

Constitution and concluding that it

reavires a auelified voter to be a

resident of the precinct in which the

voter offers to vote for a continuous

period of thirty days immediately

preceding an election, concluded that

this precinct residency reguirement does

not violate the United Stetes

Constitution, relying on Dunn v.

Plumstein, 405 U.S. 330 (1972). App.

50-60. The trial court did not address

the eaual] protection issues argued by

plaintiffs based on the differing voter

eligibility rules among voters moving

within a county, voters moving between

counties in Indiana, and voters who have

moved overseas.

The In@iane Court of Appeals

affirmed the trial court's

interpretation of the State

————————

Constitution, and then addressed the

equal] protection issues argued by

plaintiffs. Turning first to the proper

Stancard of review under the equal

protection clause, the Court of Appeals

held the standard to be applied in this

case was “strict scrutiny" because “the

riaht to vote has long been accorded the

status of a fundamental riocht," citing

Dunn v. Blumstein, 405 U.S. 330, 336

(1972). App. 77. The court concluded

that the state had failed to offer a

compelling state interest for the

Gistinction between the voting rights of

the Callaaher and Mouser subclasses, and

therefore the Cistinction could not

Survive “strict eoual protection

scrutiny." App. 78. The court went on

to hoje that even if “low-level equal

protection scrutiny," under which the

Statute "needs only to be rationally

related to a legitimate state interest,"

were the applicable standard, the

statutory scheme failed the equal

protection test. Pecause transfer

reauests could be acted on only after an

election, the proffered justification of

"administrative convenience" "bears no

rational relationship to the distinction

in voting rights between voters who move

intra-county and make a timely transfer

reauest ane either of the subclasses

Gallaaher and Mouser represent.

Further, we cannot conceive any

leaitimate state interest that would

justify such a @istinction." App. 80.

Concluding that the statutory scheme

limitina the rights of moving voters to

votina only for President and Vice

President is unconstitutional under the

ecua] protection clause, the Court of

Appeals reversed and remanded the

judgment of the trial court. App. 8l.

The Indiana Supreme Court granted

trensfer and affirmed the trial court.

Aaqreeing with the lower courts'

interpretation of the state

constitutional provisions on voter

Sualifications, App. 10-18, the Supreme

Court concluded that the use of the

strict scrutiny equal protection test

"in this context was error" because the

plaintiffs "do not ... enjoy a

fundamental riaht to vote in a precinct

in which they do not reside." App.

20-21. The court therefore analyzed the

issues uncer the traditional “rational

basis" eauva] protection test applied by

this Court in Holt Civic Club v. City of

Tuscaloosa, 439 U.S. 60 (1978).

Pegarding the Gallagher class of

intra-county movers, the Cupreme Court

found a rational basis for the

Cifference in voting eligibility between

intercounty and intracounty movers,

conclué@ing that the legislature "could

have reasonably assumed" that a move

within the same county was "less likely

to result in a voter changing

conaressional or legislative Gistricts

and would be less likely to diminish the

voter's legitimate interest in the local

election", App. 23, notwithstanding the

fact that members of the Gallagher class

have not moved from the state and are

disoualified from voting for statewide,

federal and state offices as well as any

state issues which may be on the ballot.

The court's approval of this result is

premised on the conclusion that the

Callaaher class members retained no

fundarental right to vote in state

elections because they "cannot meet the

20-day [precinct] durational residency

reauirement." App. 25.

Reasoning that disqualification of

the Mouser class was caused by “failure

iia ernie

to take timely steps to fulfill [the

etetute's]) minimal reaquirements" to

obtain a transfer effidavit from the

voter reaqistration office before

election day, the court concluded that

the statutory requirement "easily passes

the rational] basis test." App. 29. The

court did not mention the fact that the

Flection Code permits moving voters to

complete transfer affidavits at the

polling places of their former precincts

on election Gay and to vote in that

election for President and Vice

President (as Mouser did in 1988), or

the fact that those transfer affidavits

are Celivered to the central county

election offices where they can be

processed after the election (as the

Court of Appeals had noted). The

Supreme Court justified the uniaue

Indiena procedure on the grounds that

"cormon sense dictates that

LL rl st

administrative convenience is served by

a system requiring transfer affidavits

to be executed in the office where the

votina registration records are kept"

ana that "the statutory scheme at issue

might help ensure that voters who move

after the registration deadline actually

inform the election office so 2a transfer

of registration can be effected." App.

29-20.

The court therefore concluded that

the statutes involved in this case,

which effectively disfranchise all

inter-county movers and most

intra-county movers, consisting of 3a

significant number of otherwise

aualifie@ Indiana voters, "do not

violate eaual protection guarantees."

4, Federal Constitutional Issues

Presented in State Courts.

In his second amended complaint

filed December 1, 1988, Gallagher

brought suit under 42 U.S.C. §1983

eqgainst the state and county election

officials, alleging the rights of the

merbers of his class to egual protection

of the law under the Fourteenth

Amendment were violated by the

provisions of the Indiana Election Code

which-permit intracounty movers to vote

in their precinct of former residence

for federal and statewide candidates and

Statewide ballot propositions, but deny

the same right to intercounty movers

(Count TII, App. 108-109). Gallagher

reauested declaratory and injunctive

reJief as to the statutory provisions

which disfranchise the members of his

Class. App. 110-1ll1l.

——— tet :

In hig amended intervening complaint

submitted February 7, 1989, Mouser also

sued under 42 U.S.C. §1983 and alleged

thet the provisions of the Election Code

which reauire him and the members of his

class to have executed a transfer

affidavit et least four days before the

date of the election at the office of

the county clerk or board of

registration, and deny voting rights to

those intracounty movers who were unable

to setisfy that reauirement, violated

the rights of the class members to equal

protection quaeranteed by the Fourteenth

Amendment (Count III, App. 114-115).

Mouser also requested decleratory and

iniunctive relief with respect to the

reavirements of Ind. Code 3-7-8-2,

reavesting that they be allowed to vote

in all elections upon compliance with

the procedure specified under IC 3-7-4

releting to presidential elections.

App. 11€-118.

When the trial court did not address

these issues upon concluding that the

voting rights of both subclasses could

properly be denied under the ruling in

Dunn v. PBlumstein, both the Gallagher

and Mouser subclasses argued on appeal

that those provisions of the Indiana

Flection Code which effectively

prevented ther from voting, except for

presidential electors, violated their

constitutionally guaranteed right to

eaual]l protection of the laws (Brief Part

II, argument headings at App. 119-120).

The Court of Appeals addressed those

issues, holding the statutes in guestion

violative of the egual protection

clause. On petition to transfer to the

Indiana Supreme Court, the state

election officials argued that the Court

of Appeals erroneously decided the

issues under the egual protection clause

(Part I of Brief, argument headings at

App. 121), and the Supreme Court passed

on those issues with respect to both the

Callaaher and Mouser subclasses in

affirming the trial court.

RPFASCNS FOR GRANTING THE WRIT

1. The Indiana Supreme Court's

Application of the Rational Basis

Standare@ of Review to

Disfranchiserent of Properly

Registered Voters of the Relevant

Political Unit Conflicts with

Controlling Precedents of This

Court.

In its most recent voting rights

Aecision, this Court stated:

"The appropriate standard for

evaluating a claim that a state

law burdens the right to vote is

cet forth in [Anderson Vv.

Celebrezze, 460 U.&. 780

(1983))."

Rurdick v. Takushi, 504 U.S.

, 119 L.EG.2d 245,

’

256 (1992).

Weighing Hawaii's ban on write-in voting

against the ease of compliance with the

State's ballot access alternatives, this

Court upheld the restriction as imposing

"only a limited burden on voters' rights

to make free choices and to associate

politically through the vote", Id., and

concluded that the ‘legitimate interests

asserted by the State are sufficient to

Outweigh the limited burden that the

write-in voting ban imposes upon

Hawaii's voters." Id. at 257-258.

Farlier in the same term this Court

also applied the Anderson balancing

Standard to strike down an Illinois law

requiring a county candidate of a new

political party to obtain 25,000

signatures in each electoral district,

as compared to the same total signature

requirement for a candidate in a

Statewide election, stating:

"To the degree that a State

would thwart [the interest of

likeminded voters to gather in

pursuit of common political

ends] by limiting the access of

new parties to the ballot, we

have called for the

demonstration of a corresponding

interest sufficiently weighty to

justify the limitation, see

Anderson, supra, at 789, and we

have accordingly required any

severe restriction to be

narrowly Grawn to advance a

State interest of compelling

importance."

Norman v. Reed, 502 U.S. ;

116 G.£0.24 7Fll, 723

(1992).

In Anderson v. Celebrezze, speaking

to the “analytical process" a court must

use in evaluating constitutional

challenaes to specific provisions of a

state's election laws, this Court

articulated the following standard:

"Tt 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."

Anderson v. Celebrezze, 460 U.S.

780, 789 (1983).

In Anderson the result of this

analysis was invalidation of a March

filing deadline for ballot access

applied to an independent candidate for

President. The same standard was used

in Tashjian v. Republican Party of

Connecticut, 479 U.S. 208, 214 (1986),

to strike down a state law preventing a

political party from permittina

independent voters to participate in

certain perty primaries.

In deciding this case the Indiana

Supreme Court did not follow the

analysis employed in Anderson, Tashjian,

Norman and Burdick. Instead, it relied

on Holt Civic Cluk v. City of

Tuscaloosa, 439 U.S. 60, 74 (1978) and

Salyer Land Co. Vv. Tulare Lake Basin

Water Storage District, 410 U.S. 719,

722 (1973), for the proposition that

"the appropriste inquiry is whether "any

stated facts reasonably may be conceived

to justify’ the distinction in voting

rights at issue in this case." App- 21.

The Indiana Court of Appeals, which

did not have the opportunity to consider

this Court's decisions in Norman and

Rur@ick, expressly rejected the State's

argument that this Court's decision in

Polt Civic Club "requires application of

low-level equal protection scrutiny in

this case" and held that "the proper

stan@ard is strict scrutiny" based on

Dunn v. Blumstein, 405 U.S. 330 (1972),

App. 76-77. Application of that

standard resulted in the court's holding

that the statutes disfranchising late

moving voters "ere unconstitutional

I cccninssiiiiiieiaiieiell

under the Faual Protection Clause."

App. na

The so-called strict scrutiny equal

protection test applied in Dunn to state

Guretional residency requirements for

voter eligibility was first fully

@erticulated in Kramer v. Union Free

Echool] District No. 15, 395 U.S. 621,

626-628 (1969), which invalidated the

limitation of a school district

electorate to residents of the district

who owned or leased real property there

Or hac children enrolled in the schools.

Previous voter eligibility cases which

in effect applied the same strict

standardc, without discussion of its

s/ Alternatively, the Court of Appeals

concluced that the challenged provisions

failed "even if low-level equal

protection analysis was appropriate in

this case." App. 78.

a ie

variance from the more traditional equal

protection test, include Carrington Vv.

Rash, 380 U.S. 89 (1965) (ineligibility

of military personnel to gualify as

resident voters) and Harper V. Virginia

Roard of Flections, 383 U.S. 663 (1966)

(poll tax payment requirement for voting

eligibility in state elections).

After Kramer strict scrutiny was

also applied to invalidate voter

eligibility restrictions in Cipriano Vv.

City of Houma, 395 U.S. 701 (1969)

(revenue bond elections restricted to

property taxpayers), Evans V. Cornman,

308 U.S. 419 (1970) (residents of

federal enclaves in state could not vote

in state elections), City of Phoenix v.

Kolodéziejski, 399 U.S. 204 (1970)

(general obliaation bond elections

limited to real property taxpayers) and

Hill v. Stone, 421 U.S. 289 (1975)

(property required to be listed for

taxation as condition to voting

eligibility in city bond elections).

The same test was applied to invalidate

certain ballot access restrictions,

e.g., Bullock v. Carter, 405 U.S. 134

(1972) (substantial filing fee

reouirements for primary), Moore v.

Cailvie, 394 U.S. 814 (1969) (formula

for distribution of petition signatures

arona counties regardless of size),

Tllinois State Boare of Elections v.

Socialist Workers Party, 440 U.S. 173

(1979) (signature requirement for

independent candidate or new party more

burdensome for city mayoral election

. than for statewide election).

Heightened scrutiny was also applied in

American Party of Texas v. White, 415

U.S. 767 (1974) (upholding ballot

qualification requirements for new

parties and independent candidates, in

relation to percentage of votes received

in last election, and exclusion of minor

parties from public financing of

primaries).

In addition to Holt Civic Club and

Salyer, decisions which expressly

employed the deferential rational basis

test include McDonald v. Board of

Flection Commissioners of Chicago, 394

U.S. 802 (1969) (unavailability of

absentee ballots to pretrial detainees

absent proof that other methods of

voting were not provided), Rosario v.

Rockefeller, 410 U.S. 752 (1973)

(pre-primary cutoff deadline for

enrollment in party) and Ball v. James,

451 U.S. 255 (1981) (limitation to land

owners of right to vote for directors of

water reclamation district). In each of

those cases the Court sustained the

challenged restrictions.

_BA few cases prior to Anderson

invalidated state election law

restrictions without discussing the

applicable standard of review, e.q.,

Lubin v. Panish, 415 U.S. 709 (1974)

(requirement that indigent candidate pay

filing fees for ballot access).

This Court hes never decided 2 case

challenging denial of voting rights to

bona fide residents of an electoral

unit, solely pecause of a change of

residence within the unit after the

registration cutoff date. The relevant

facts appear more analogous to Kremer

and Evans than to Holt, thereby pointing

toward strict scrutiny as the applicable

equal protection test. For Holt to

control one must accept the proposition

that an Indiana precinct is the relevant

unit of government for determinina the

voter's eligibility based on resicGence.

However, Indiana law makes clear that

precincts are neither governmental units

nor electoral districts, since they

elect no public officials and have no

governmental functions; they are simply

administrative units established for the

convenience of administering elections.

Clearly this case is not simply an

appiication of the rule permitting

reasonable pre-election registration

cutoffs approved in Dunn and its

progeny, Marston v. Lewis, 410 U.S. 679

(1973) and Burns v. Fortson, 410 U.S.

686 (1972). Both the Gallagher and

Mouser classes, by definition, have met

Indiana's residency and registration

reauirements for the electoral districts

in which they seek to vote. They do not

challenge Indiana's 30-day durational

residency requirement for purposes of

eligibility to register at a new address

under Ind. Code 3-7-3-5, but only the

State's prohibition on their moving

within the state after the registration

cutoff date on penalty of losing their

right to vote for members of Congress

and for state and local officials, at

the polling places where their names

properly appear on the voter rolls.2/

This Court should grant certiorari

to resolve the conflict between the

courts below concerning the proper

standard of review to be utilized in

evaluating plaintiff's equal protection

challenges to the Indiana statutes

dGisfranchising or placing onerous

burdens on voters who change residence

to a cifferent precinct within the state

after close of registration and who seek

to vote at their precincts of

registration, and to determine whether

a/ The plaintiff in Dunn did not meet

the in-state durational residency

reaquirerent. Tennessee law provides, as

it did at the time of the Dunn decision,

that a voter moving within the state

less than 90 days before an election may

vote in the precinct where registered.

Tenn. Code Ann. §2-7-115(a); Dunn, 405

UsS. Ot 333 fm. 2

failure of the state to preserve the

voting eligibility of these classes of

voters severely burdens, without a

sufficiently justifiable state interest,

the right of these classes of voters to

vote.

2. The Fligibility Reguirements for

Intra-County Movers Fails the Most

Deferential Rational Basis Test

Utilized by This Court in Voting

Rights Cases.

Fven if, as the Indiana Supreme

Court concluded, the pre-election

affidavit reauirement applied to the

Mouser subclass as a condition to voting

eligibility does not theoretically

deprive those voters of their vote

(although 96% of those potentially ~

eligible were in practice disfranchised

by this condition in 1988), the State'’s

restriction must still satisfy the

deferential rational relationship

standard to satisfy an equal protection

challenge.

The court's speculation that this

requirement serves the administrative

convenience of the voter registration

officials is conclusively contradicted

by the recorce. The state presented no

evidence sugagestina this requirement

assists the administration of elections.

Indeed, Marion County election officials

testified that the requirement neat ky

digserves their convenience in light of

their other pre-election duties. And

Since intra-county movers who fail to

obtain the pre-election affidavit from

the Registration Board may complete a

Similar affidavit at the precinct for

the presidential election, and those

affidavits are turned in to the central

election office after election for

appropriate registration changes, the

lower court failed to give any rationale

for the greater requirement imposed on

voters desiring to vote for offices

other than President.

Where no rational basis for a given

classification appears, this Court has

not hesitated to invalidate it as a

violation of the egual protection clause

City of Cleburne v. Cleburne Living

Center, 4732 U.S. 432 (1985) (no record

support for special permit requirement

for group home for the mentally retarded

as compared to other similar uses). In

election cases this Court also has

stricken irrational reguirements which

effectively disfranchise voters without

applying heightened scrutiny, where no

reasonable explanation was apparent.

One example is O'Brien v. Skinner, 414

U.S. 524 (1974), where the Court

invalidated New York's failure to

provide absentee registration and voting

procedures for eligible pretrial

detainees confined in the county of

their legal residence, while permitting

those procedures for any eligible

voters, including pretrial detainees,

unavoidably absent from their county of

residence. £/ In Illinois State Board of

Flections v. Socialist Workers Party,

Justice Rehnauist, who did not subscribe

to the Court's use of strict scrutiny in

this type of case, concluded that the

Statutory disparate treatment of

Sianature reauirements for statewide and

Chicago candidates "bears no rational

relationship to any state interest."

440 U.S. at 191. Likewise, in Cipriano

two Justices concurred in striking the

revenue bond voting eligibility

limitations under the rational basis

tf Although three Justices would have

applied the compelling state interest

test to this classification, the

majority found it unnecessary to do so.

standard as involving "a voting

classification wholly irrelevant to

achievement of the State's objective",

295 U.S. at 707.

The fact that Indiana's requirement

of completion of a pre-election

affidavit obtained from a central office

is uniague among the 50 states argues

persuasively that the state is unable to

show any rational basis for the

requirement.—./ This Court has on more

than one occasion noted the absence of

the challenged restriction in most

/ A survey of state laws relating to

transient voters showed that all but six

of the 47 states having a pre-election

durational residence requirement greater

than three days provide for retention of

voting eligibility at the voter's former

residence, and one state allows the

voter to vote at the new location (32

states include inter-county movers).

None, except Indiana, reguires a

pre-election special affidavit.

Appendix to Appellants' Brief in Indiana

Court of Appeals.

states as demonstrating a lack of

sufficient justification for the

requirement, e.g., Harman v. Forssenius,

380 U.S. 528, 543 (1965) (pre-election

certificate of residence filed with city

Or county treasurer), City of Phoenix v.

Kolodziejski, 399 U.S. 204, 212-213

(1970) (only 14 states restricted to

property owners franchise on general

obligation bonds).

This Court should grant certiorari

to review whether Indiana's unique

requirement of a pre-election transfer

affidavit for intra-county movers, which

is not used until after the election,

lecks 3 sufficient rational basis to

pass muster under the equal protection

clause as a procedure which effectively

disfranchises most voters to which it

applies.

2, The Indiana Supreme Court's Decision

That Disfranchisement of Late Moving

Voters Does Not Violate the Egual

Protection Clause Conflicts Directly

with a Decision on the Same Issue by

the New Jersey Appellate Court.

Neither the Indiana Supreme Court

nor the Indiana Court of Appeals cited

or discussed Afran v. County of

Somerset, 244 N.J.Super. 229, 581 A.2d

1259 (1990), although the case was cited

to both courts and discussed extensively

in plaintiffs' briefs. The Afran court

held that a construction of state law

denying the franchise to a registered

voter who moved to another county within

the state, within the 30 day period

before election when the registration

books were closed, would place the state

law "on a collision course with the

United States Constitution" as

interpreted by this Court in Dunn. 581

A.26 at 1363. Noting the distinction

between a uniformly applied bona fide

residence requirement,

residence requirement and a durational

concluded:

"We have no doubt that the

30-day durational requirement

for bona fide state residents

readily meets the requisite

strinaent standard ... We do

not, however, perceive any

similar compelling State

interest justifying an

additional, new, and independent

30-day county resident

requirement for a state resident

who simply moves to a different

county from the one in which he

is already residing, in which he

has permanently registered, and

in whose election books he

alreacy has his page ... Nor

have defendants been able to

Suggest to us any compelling

state interest justifying the

Gisparity between an

intra-ccounty mover and an

inter-county mover either in

terms of the mechanics of

conducting the election or in

generally protecting the

inteqrity of the election

process." Id.

the Affran court

Since the court in Afran found the

election mechanism could not feasibly be

adapted to limit the right to vote of

both intra-county and inter-county

movers to candidates and questions

common to their old and new election

Gistricts, the court concluded that both

categories of voters had to be permitted

to vote in the ensuing election at their

precinct of registration, as state law

already permitted in the case of

intra-county movers.

This same issue had been presented

to the Ninth Circuit in Barilla v.-

Ervin, 886 F.2d 1514 (9th Cir. 1989),

but the issue was mooted as to future

elections when Oregon enacted a law

allowing all persons moving within 40

Gays prior to an election to vote

without having to reregister. 886 F.2d

at 1519, 1521. No other reported

Gecision in either state or federal

courts has been found which addresses

this precise issue.

4, Denial

of Voting Pights to the Many

Thousands of Voters in Indiana and

Other States Which Have No Adequate

Fligibility for Registered Voters

Who Move Within the State After the

Pre-election Cutoff Date Is an

Important and Substantial Issue

Arising Under the Equal Protection

Clause

Provide Guidance.

on Which This Court Should

The undisputed evidence in this

case, based on official census reports

and expert

approximately 235,900 Indiana registered

voters move from their precinct of

residence within 30 dGays before any

election,

potentially be within the scope of

Subclesses

reaqistered

have moved

residence,

registered

have moved

Inciana, within 30 days preceding an -

and therefore would

testimony, established that

A and B. More than 25,000

voters would be likely to

within their county of

and approximately 8,900

voters would be likely to

from one county to another in

election. Moreover, population trends

evidence increasing mobility.

It appears that between six anda

twelve states disfranchise registered

voters who move within the state shortly

before an election. See Record, Prief

and Appendix of Appellants in Indiana

Court of Appeals, Appendix A, and Record

589-591 (expert witness Henderson

testimony regarding voting registration

and election procedures in the laws of

other states). While there is no record

evidence concerning how many registered

voters are disfranchised by these laws

in other states, the number must reach

in the hundreds of thousands given the

,000 figure for Indiana. The effect

of these laws is thus substantial, and

justifies this Court's intervention and

protection of the right to vote of this

large group of disfranchised voters.

DATED: November 24, 1992.

Respectfully submitted,

John Wood *

PAMBERGER & FEIBLEMAN

500 Union Federal Building

45 N. Pennsylvania Street

Indianapolis, IN 46204

(317)639-5151

Richard A. Waples

Indiana Civil Liberties

Union

445 N. Pennsylvania Street

#911

Indianapolis, IN 46204

(317)635-4059

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.