The Indiana Court of Appeals has decided, in the case of League of Women Voters v. Todd Rokita (pdf) that the Voter ID law (P.L. 109-2005) violates Article 1, Section 23 of the Indiana Constitution which states: “Section 23. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”
The Court of Appeals, therefore, reversed the order of the trial court and remanded the case with instructions that the trial court enter an order declaring the Voter ID law void.
Update The primary reason for the Court Appeals finding the Voter ID law to be unconstitutional seems to be the disparate treatment between absentee voters and in-person voters. (Incidentally, when the bill was originally considered, a proposed amendment that would have treated in-person and absentee voter requirements more equally was voted down.)
In 2005, the Indiana General Assembly passed a law requiring “citizens voting in person on election day or casting a ballot in person at the office of the circuit court clerk prior to election day to present photo identification issued by the government.” Crawford v. Marion County Election Bd., 128 S. Ct. 1610, 1613 (2008). The Voter I.D. Law applies to voting in both primary and general elections. Ind. Code §§ 3-10-1-7.2 and 3-11-8-25.1. It does not apply, however, to voters casting absentee ballots by mail or those who happen to reside at a state licensed care facility where a precinct polling place is located. I.C. §§ 3-10-1-7.2(e), 3-11-8-25.1(e), and 3-11-10-1.2.
The Court of Appeals found that the Voter ID law did not violate Article 2, section 2 by impermissibly imposing an additional qualification for voting. Rather, the Court of Appeals held that the Voter ID law was a regulation of the time, place, and manner in which eligible citizens could cast their vote.
Turning to the Equal Privileges and Immunities Clause (Art 1, sec. 23):
The League contends that three aspects of the Voter I.D. Law violates Section 23: (1) the disparate treatment between mail-in absentee voters and in-person voters; (2) the disparate treatment between voters who reside at state licensed care facilities that by happenstance are polling places and elderly and disabled voters who do not reside at state licensed care facilities that also happen to be polling places; and (3) the requirements that an identification contain an expiration date and photograph is not reasonably related to the purpose of the statute.
Citing to a case where the Supreme Court decided that a provision placing more stringent requirements on absentee ballots to be included in a recount than in-person ballots was constitutional, the court of appeals noted the Supreme Court’s rationale:
Our supreme court declared to the contrary that the statute was constitutional, because inherent differences make mailed-in ballots more susceptible to improper influences or fraud, and, therefore, “it is reasonable that the legislature believed it in the interest of Indiana voters to more stringently govern absentee balloting.”
It would be irrational for the legislature to believe that mailed-in ballots are inherently more susceptible to fraud on one hand and less susceptible to fraud on the other hand. (There is a legal fiction that the legislature acts rationally.) Consequently, imposing more stringent requirements on in-person voters than on absentee voters is unreasonable and violates the equal privileges and immunities clause of the Indiana Constitution.
Apparently there is a provision which exempts from the ID requirement individuals residing in care facilities which also serve as polling places. The Court determined that the inherent natural characteristics of such a class of people did not justify treating them differently in this fashion. “The nature of state licensed care facilities and the inherent natural characteristics of the residents who reside in them may make them subject to certain directed legislation, but the Voter I.D.?s grant of immunity from the identification requirement for in-person voters is not appropriately related to those characteristics.”
There was also some discussion of the photo and requirement that the ID have an expiration date which had not yet passed. The Court did not have any problems with those requirements. Specifically noting the incident where Purdue student IDs were accepted as identification without expiration dates, the Court said that this was irrelevant to a facial challenge to the statute. It would be a challenge to the way a statute was being applied, which is a different sort of lawsuit.
This is very exciting news for the youth, elderly, and poor of Indiana. Any predictions or insight on whether this will stand on appeal to the Indiana Supreme Court?
I suspect the Supreme Court would grant transfer, but I have no idea whether they would let it stand or overturn it.
I think it’s tough to argue that the legislature has been consistent or logical when it imposes more restrictions on in-person voting than absentee voting under the pretense of securing against voter fraud. But, I’m not altogether sure the Supreme Court will require the legislature to be consistent or logical.
An Indiana Court struck down the Voter ID Law even after the U.S. Supreme Court had ruled it was constitutional. The problem that I tried to identify years ago when this was being proposed was that it violated some people’s individual rights. I know personally two people who are denied Indiana Driver’s licenses and State ID’s because they do not have a social security number. I also identified to the state of Indiana that the Voter Registration law does not require a Social Security Number and that it could not require it under Federal Statute.
The state attempted to circumvent Federal Statutes concerning the SSN by requiring a State issued ID. A U.S. Passport is a valid photo ID for voting, but it costs over $100 to obtain. The U.S. State Department cannot require the person have a SSN to obtain a U.S. Passport. If the state were to require a SSN they would be imposing a hardship on people who do not have a SSN.
A year later I was told that absentee ballots could be sent without the photo ID to the voter’s address under certain circumstances; health reason, out of the state at the time of the election and military. When I said this did not cover all circumstances I was told the county does not verify the request is valid, but simply sends the absentee ballot out.
William Sherman Smith used valid names and SSN’s to obtain 149 different Indiana Driver’s licenses. The Social Security Online Verification System verified the name and SSN matched, but cannot identify if a driver’s license had already been issued and Indiana’s BMV could only verify if a driver’s license had been issued using that SSN. As long as you had someone’s SSN and name who had not obtained an Indiana ID or driver’s license (use out of state ID’s), the Indiana BMV issued these types of identifications without question.
Indiana began using photo recognition programs and found numerous people like William Sherman Smith who had obtained multiple ID’s. So how well did asking for a SSN work? It did diddly squat for fighting Identity Theft, while infringing on the RIGHTS of U.S. Citizens.
What is the answer? How many times will a person performing a repetitious task make an error? From my experience and what others have found, people will make an error 5% of the time. Therefore, requiring a SSN and utilizing this one ID, that has no method of being traced to the particular person presenting it as ID, will result in errors of 5%. Now what happens when you ask for more than one ID that must be verified? With each subsequent person looking at the information, there is less chance the error will go unnoticed. We know that photo recognition worked better than using the SSN. However, photo recognition is not fool proof and can be manipulated fairly easily. When you fill out the voter registration card, they should take a photo of you and issue a voter ID card. Every time you move, you need to obtain a new card. Voter registration already assigns a unique number to the individual. How hard is it to track the replacement, issue and movement of a person if a unique secure number is used?
We are chasing a ghost. With each advance in technology, the identity thieves or voter fraudsters will use future technology to continue to steal and violate laws. Criminals have been around since day one. We are treating everyone now as a potential criminal instead of a citizen.
Expecting the General Assembly to exercise logic is kinda of like expecting Glen Beck to become a San Francisco City Councilman.
I can smile a little, knowing that the Court of Appeals ruled on the basis of differential treatment between absentee voters and in-person voters. I thought that was a flaw from the beginning.
Doug:
I’m wondering whether the Governor’s fevered comments in today’s Star
striking down the photo ID law don’t violate the Code of Professional
Conduct.
I believe that the Governor is a licensed attorney. At least there is
someone with his name on the Roll of Attorneys.
The Governor called the decision “preposterous”, “extreme” and (this is
the key phrase)
“transparently partisan”.
You may recall that in 2003 our Supreme Court sanctioned a respected
attorney for making a comment in an appellate brief that a COA opinion was
“so factually and legally inaccurate that one is left to wonder whether
the [COA} was determined to find for [the other side] and then said
whatever was necessary to reach that conclusion.” The Supreme Court held
the comment to be in violation of Rule 8.2 of the Code of Professional
Conduct, which prohibits lawyers from questioning falsely or recklessly
the integrity of a judge. In re Wilkins, 782 N.E.2d 985, 985 (Ind. 2003).
The Court held that while lawyers can criticize decisions of judges, they
cannot make recklessly false claims about a judge’s
integrity.
Canon 3 B.(2) of the Code of Judicial Conduct clearly states that a judge
“shall not be swayed by partisan interests…”. A judge who made a
decision for reasons other than the facts and law would violate the
judicial code. Thus, accusing a judge of being swayed by partisan
interests is an attack on the judge’s impartiality and thus his or her
judicial and personal integrity.
It appears that Gov. Daniels has accused Judge Riley and the panel which
decided this case, falsely or with reckless disregard for the truth, with
violating Canon 3 B. (2) by making a decision based on her partisan
interests rather than on the law or the constitution. This statement
would seem, under the Wilkins case, to be a rather obvious violation of
Rule 8.2 of the Code of Professional Responsibility. It might also be
seen as an attempt by a politician with a very high profile to intimidate
or influence the Supreme Court by making a not so veiled threat that if
they dare uphold that decision, and particularly if they were appointed by
a governor of a political party different than his, they, too, will be
accused by the Governor of being “partisan”.
I would be curious to know your thoughts about this.
Don’t forget “judicial arrogance.”
I actually had the same thought this morning. Certainly if I put the same thing in a brief or argued with such language in court, I’d be in for a world of hurt, professionally. I suspect Daniels gets to skate because he’s not acting as an attorney and he represents a co-equal branch of government.