Tag Archives: lawsuit

A Lawsuit Worth Supporting

Yesterday, the NAACP, Common Cause and several individual plaintiffs brought a lawsuit that I consider overdue.

A bit of background: Indiana law allows early voting, and also allows counties to establish satellite voting centers to make casting those votes more convenient. The law requires a unanimous vote by the County’s Election Board members in order to open a satellite center. Some Boards establish several  in order to accommodate their voters. Lake County, with fewer residents than Marion County, has eight.

Marion County is the most populous county in the state, but for the past several years, the lone Republican on the three-member board has adamantly opposed opening any satellite sites.

As the Complaint notes,

  1. Marion County had 699,709 registered voters in 2016 but because of the MCEB’s refusal to approve satellite voting locations, it had but a single early voting location due to the MCEB’s failure this decade to approve a resolution establishing satellite sites for early voting, a ratio of one (1) early voting site to 699,709 registered voters.
  2. By contrast, Hamilton County had 230,786 registered voters in 2016. Its election officials unanimously approved two satellite voting locations in addition to the office of the circuit court clerk, a ratio of one early site for every 76,929 registered voters.
  3. Hendricks County had 109,903 registered voters in 2016. Its election officials approved three (3) satellite voting locations in addition to the office of the circuit court clerk, a ratio of one early voting site for every 27,476 registered voters.
  4. Johnson County had 107,546 registered voters in 2016. Its election officials approved five (5) early voting sites in addition to the office of the circuit court clerk, a ratio of one early voting site for every 17,924 registered voters.

The refusal to open satellite sites in Marion County has caused  long lines and extended wait times at the sole available site–the office of the circuit court clerk in Indianapolis.

The refusal to approve satellite voting sites has also resulted in a dramatic decrease in the number of voters who cast an early in-person absentee vote in 2012 and 2016 as compared to the numbers of voters who voted early in 2008 when satellite locations were approved and used, which has the further effect of causing a higher percentage of Marion County voters to cast an in-person ballot on Election Day, thus resulting in increased lines and wait times at precinct polling places.

Moreover, because Marion County has the highest percentage (28%) of African-Americans in Indiana, and because African-American voters are more likely than other voters to utilize early voting, the MCEB’s refusal to approve multiple satellite locations for early in-person absentee voting as permitted by Indiana law has disproportionately resulted in the denial or abridgement of the right of African-American voters to cast an early in-person absentee ballot.

The suit asks the Court to find that the Republican member of the Election Board has caused the Board to violate the 14th Amendment’s Equal Protection and Due Process Clauses, the Voting Rights Act and the Indiana Constitution, and to issue an order “enjoining Defendants from continuing to obstruct, interfere with and block the establishment of at least two satellite voting locations in Marion County for the federal elections in 2018 and beyond.”

It’s bad enough that Indiana’s polls close earlier than all but one other state, and that our Voter ID law operates to suppress the votes of the poor and elderly. But to limit early voting to a site inconvenient to so many and where parking is so difficult is just another way of giving the finger to minority and Democratic voters in Indianapolis.

If you agree that this suit is meritorious and overdue, join me in supporting the crowdfunding effort that has been established to cover litigation expenses. The estimable Bill Groth (a local hero!)–is handling the case pro bono, but Defendants are sure to run up the expenses that will have to be covered.

This cynical effort to suppress votes rather than competing for them “fair and square” needs to be defeated.

Even Jerks Have Rights

A couple of days ago, the Indianapolis Star ran a story about a group of very odd bedfellows who are urging the Indiana Supreme Court to accept and reverse a case that presents significant First Amendment issues. I was one of those “bedfellows,” and I will admit that I would never have imagined teaming up with Phyllis Schafly’s Eagle Forum, or the “First Amendment” organization run by Jim Bopp! (I have more in common with other members of the group: Jim Brown, former Dean of IUPUI’s Journalism School, the Indianapolis Star itself, the Hoosier State Press Association, and a variety of other organizations.)

The case that gave rise to this challenge was a divorce and custody battle. The Judge awarded custody of the children to the wife, and the husband was furious. He vented his displeasure in a series of blog posts that were–well, just let’s say they were not complimentary. Among other things, the husband compared the decision to award custody to the mother to child abuse.

From what I can tell from the record, the guy is missing a few screws, and is fairly unpleasant to boot.

Being unpleasant, however, is not equivalent to waiving one’s right to free speech. In this case, the lower courts ruled that the husband’s online rants had violated an Indiana statute prohibiting intimidation. That Statute defines intimidation as a threat or threats that have the purpose of making their target behave in a certain way (for example, the man who tells his girlfriend that he will break her arms and legs if she leaves him). The Indiana Court of Appeals decided that the husband’s stated intention to continue publicly criticizing the Judge amounted to such a threat.

If that interpretation stands, the statute would criminalize common, constitutionally protected forms of speech. The purported “threat” was along the lines of “If you don’t reverse your decision, I’ll continue to badmouth you.” As Eugene Volokh, the constitutional scholar and law professor who is representing our group, puts it in his brief, this sort of “threat” is indistinguishable from the following:

(1)  a columnist’s writing, “Legislator A’s vote on issue B is ridiculous, and I intend to ridicule him until his constituents view him with contempt.”

(2)  an advocacy group’s picketing a store with signs saying, “The store owner’s decision to stock product C is disgraceful, and we hope our speech will expose the owner to disgrace and ostracism.”

(3)  a politician’s saying, “The incumbent’s decision D is so foolish that, once I tell the voters about it, he will be the laughingstock of the state.”

The truth is, the right to free speech is often exercised by people who have nothing of value to say. It is often a shield for vulgarity and stupidity. It protects people who use words to attack and diminish others. But so long as the weapon of choice is language–so long as there is no threat of non-verbal harm–the speech is protected against reprisals from government. As numerous courts have reminded litigants, the antidote to bad speech isn’t government suppression; it is more and better speech.

As tempting as it is to use the government to shut down annoying jerks, it’s well to remember that a government with that power can also silence the rest of us.