# Petition for Writ of Certiorari — Gallagher v. Indiana State Election Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1714%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 506 U.S. 1081 ## Text 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, Ve 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 ii 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 iv 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 V 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 vi 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 1 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 ee 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 — 8 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 9 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 10 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. a 11 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 12 ; ; 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——————— a3 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 14 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 15 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 ———————— 16 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," 17 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. ee 18 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, 19 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 20 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 | 21 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." 22 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 : 23 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 i 24 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 25 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 26 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 27 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 28 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 29 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 30 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 31 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 32 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 33 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 34 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 35 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 36 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 37 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. 38 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 39 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 of the Fourteenth Amendment. See, ©.G-, 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 40 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. 41 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. ae 42 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. 43 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, 44 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 45 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 46 of Voting Pights to the Many Thousands of Voters in Indiana and Other States Which Have No Adequate Provision to Preserve Voting © 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 47 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 3 oa ,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. 48 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1714%3A1. Public record. Not legal advice.