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COA says voter I.D. law unconstitutional

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The Indiana Court of Appeals has tossed out the state's 4-year-old voter identification law as unconstitutional, bringing new attention to a statute that has been upheld by the nation's highest court.

Striking down the 2005-enacted law, a unanimous three-judge panel issued a 29-page opinion today in League of Women Voters of Indiana and League of Women Voters of Indianapolis v. Todd Rokita, No. 49A02-0901-CV-40.

The ruling reverses a decision from Marion Superior Judge S.K. Reid, who late last year upheld the state statute and found it didn't violate Indiana Constitution Article 2, Section 2 and Article 1, Section 23. Instead, Judges Patricia Riley, James Kirsch, and Paul Mathias found the law "regulates voters in a manner that's not uniform and impartial," and as a result they instructed the trial judge to enter an order declaring it void.

Attorneys hadn't decided by early afternoon today whether they will ask for a rehearing or for the Indiana Supreme Court to weigh in on this issue and reverse the appellate court's findings. Some of that may depend on timing before referendums and special elections throughout the state in November.

"This is a pretty strong decision because it recognizes the differences in place for absentee and in-person voters," said Karen Celestino-Horseman, an attorney with Austin & Jones who represented the League of Women Voters. "We are very pleased with this."

Going beyond what the League of Women Voters had brought as an as-applied challenge, the state appellate court found the statute unconstitutional on its face. The judges determined the requirement isn't considered a substantive voting qualification as the League of Women Voters had argued, and that state officials are able to enact procedural regulations as long as the rules are reasonable, uniform, and impartial to all voters. That isn't the case here, the court decided.

Indiana's lack of stringent absentee-voter regulations makes it unreasonable for this voter ID statute to put additional burdens only on in-person voters and not the others, the panel held. The judges cited Horseman v. Keller, 841 N.E.2d 164 (Ind. 2006), which found that inherent differences make mailed-in ballots more susceptible to improper influences or fraud.

"If it is reasonable to 'more stringently govern absentee-balloting,' then it follows that a statute that imposes a less stringent requirement for absentee voters than for those voting in person would not be reasonable," Judge  Riley wrote for the majority. "This is what the Voter I.D. law does."

The court took issue with how state care facilities exempt residents from the voter ID Law requirement, despite the fact that these locations are typically polling places and the absentee voting requirement already gives them an avenue to vote without showing the required ID. The legislature could address that point without destroying the primary objectives of the law, the court said.

But that isn't the case for the regulation of absentee voters, the court noted.

"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 the legislation," Judge Riley wrote.

Referring little to the ruling last year by the Supreme Court of the United States, the Indiana judges found that the federal case didn't address the state statute questions at issue here.

In its ruling last summer in William Crawford, et al v. Marion County Election Board, 128 S. Ct. 1610 (2008), the SCOTUS held the law may be unconstitutional as applied to a small number of voters who must incur cost in order to obtain the ID, but that since that case has no such voters as plaintiffs, it failed to reach that claim. That ruling rejected the facial challenge, but left the door open for as-applied challenges in federal court and those involving state constitutional claims.

Reflecting on Crawford, Celestino-Horseman said it felt even better to get this decision after everything that's happened at the federal level.

"We lost on every level in the federal litigation, and so this is very exciting to have a ruling like this," she said. "This will truly make a difference to many people."

Indianapolis attorney William Groth, with Fillenwarth Dennerline Groth & Towe, said the state law has always been vulnerable to challenges on many levels, but that the uniform argument has been a key point that now has the appellate court's agreement. Photo identification laws are a national issue and this decision will likely reverberate throughout the country, he said.

If the Indiana Supreme Court is asked and accepts the case, and affirms the decision, it could be one of only a few in state history where a statute is declared unconstitutional under Indiana Constitution's Article 1, Section 23.

State leaders responded immediately to word of the court decision, with former Indiana House Speaker Brian Bosma, R-Indianapolis, issuing a statement that urges the Secretary of State to appeal and Republican Gov. Mitch Daniels doing the same with strong words.

"This is preposterous... an extreme decision that flies in face of much better judges, frankly," the governor said, noting that he looks forward to it being reversed and that he doesn't see a need for any rewrite of the law. "This is an act of judicial arrogance, and that's always a bad idea. This decision will be a footnote to history, eventually."

The Indiana Attorney General's Office was reviewing the decision early today and wasn't prepared to comment, spokesperson Bryan Corbin said. A spokesperson in the Secretary of State's Office didn't return phone calls seeking comment about the ruling or the possibility of a transfer request to the Indiana Supreme Court.

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

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  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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