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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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