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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.