September 17, 2009

Breaking News: Indiana Court of Appeal Strikes Down State Voter Identification Law as Unconstitutional

After the United States Supreme Court upheld Indiana's strict photo identification law for voting against a constitutional (equal protection) facial challenge, challengers to the law brought a new suit in state court.

Today, in a 29-page unanimous opinion, the Indiana Court of Appeals held the law invalid under the state constitution's provision guaranteeing equal privileges and immunities. The League of Women Voters, opposing the law, raised arguments relating to: "(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."

The court concluded:

    All qualified voters must be treated uniformly and impartially. We fail to see how the Voter I.D. Law's exception of those residing in state licensed care facilities, which happen to also be a polling place, would be a uniform or impartial regulation. Furthermore, the Voter I.D. Law treats in-person voters disparate from mail-in voters, conferring partial treatment upon mail-in voters.

    It seems that the inconsistent and impartial treatment favoring voters who reside at state care facilities which also happen to be polling places could be excised from the Voter I.D. Law without destroying the primary objectives of the Law. However, the same cannot be said for the inconsistent and partial treatment favoring absentee voters who choose to mail their votes without destroying the opportunity for mailing votes. There may be different ways in which the inconsistent and partial treatment of the Voter I.D. Law could be cured, but it is not our task to form suggestions for legislation. See State ex rel. Indiana State Bd. of Finance v. Marion County Superior, 272 Ind. 47, 52, 396 N.E.2d 340, 344 (1979) ("Our constitution is clear that the judicial department cannot exercise any of the functions of either the legislative department or executive . . . ."). Therefore, we must reverse and remand, with instructions to the trial court that it enter an order declaring the Voter I.D. Law void.

I don't know much about Indiana courts, so I have no idea how this question will fare when, as I expect, Secretary Rokita appeals the decision to the state Supreme Court (because this raises only state constitutional issues, I very much doubt this case will end up at the U.S. Supreme Court). But if this ruling stands, it does show--as we saw a few years ago in Missouri, that the best chance of challenging voter identification laws appears to be in the state courts, under state constitutions, rather than in federal courts. Reverse parity, anyone?

Posted by Rick Hasen at September 17, 2009 08:38 AM