Indiana Supreme Court Holds Voter-ID Law Is Not Facially Invalid; Permits Future “As-Applied” Challenges

The Indiana Supreme Court has posted its opinion in League of Women Voters v. Rokita.

Determining that this case presents only facial challenges to the constitutionality of the Voter ID Law, we now affirm the trial court’s dismissal of the complaint, but without prejudice to future as-applied challenges by any voter unlawfully prevented from exercising the right to vote.

I’m still reading it, so I will probably update this in a bit.

Update

The Voter ID Law’s requirement that an in-person voter present a government-issued photo identification card containing an expiration date is merely regulatory in nature.

. . .

[T]he plaintiffs generally contend that the photo identification requirement is not reasonably related to the inherent characteristics that distinguish these two classifications of voters. The Voter ID Law requires proof of identification for in-person voters but not for persons who vote by mailing in an absentee ballot. The plaintiffs argue that these two classifications are distinguished on the basis that mail-in absentee ballots require heightened security and that this difference does not rationally support imposing additional identification requirements upon in-person voters. They also assert that the preferential treatment accorded mail-in absentee voters is not reasonably related to the distinctions between the classes.

I, frankly, can’t parse this sentence, but the Supreme Court responds:

[F]ocus on the “purpose” of the Law is not determinative. . . . [past case law] “requires only that . . . ‘the disparate treatment accorded by the legislation,’ not the purposes of the legislation, ‘be reasonably related to the inherent characteristics which distinguish the unequally treated classes.'”

(Emphasis in the original). More importantly, the Supreme Court thinks, it is acceptable to closely scrutinize in-person voters and not absentee voters because imposing similar identification requirements on absentee votes would be hard.

We find that not requiring photo identification for mail-in absentee voters is reasonably related to the inherent distinctions between such voters and those voting in person. We decline to find that the Voter ID Law’s failure to require photo identification of mail-in absentee voters violates the Indiana Equal Privileges and Immunities Clause.

The majority opinion is a little odd in that, while it mentions federal litigation a lot; I did not see where it directly addressed the reasoning of the Indiana Court of Appeals opinion except to note in passing that the opinion was vacated by operation of the Rules of Appellate procedure. Justice Boehm’s dissent alludes to this. Among other things, he also comments:

The photo ID cannot be justified as a registration requirement for a second reason: some of the restrictions placed on obtaining a state-issued ID do not address the legitimate concerns of preventing voter fraud. The process of obtaining a photo ID is the product of a regulatory scheme that has nothing to do with voter fraud. Its requirements were originally designed to regulate motor vehicle operators, and have now been expanded to include elaborate provisions aimed at limiting access to many facilities, for example commercial air travel, for national security reasons. Moreover, a photo ID is not required in the process of registering to vote, nor is a photo ID provided to a person who registers to vote.
. . .
[The Voter ID law] is also underinclusive because, in addition to carrying burdens unnecessary to a voter registration law, it fails to address the most obvious potentials for abuse of the registration process. To the extent we have instances of voter fraud, they have been in the use of absentee ballots that are not subject to the photo ID requirement, not in instances of voters appearing at the polls claiming to be someone they are not.

He also points out that the process should not just be subject to challenge by those who have been disenfranchised. The disenfranchisement of some affects us all in that we all have to live with the results of the vote.