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Court hears state voter ID case

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The Indiana Supreme Court on Thursday morning sharply questioned attorneys about the state's five-year-old voter identification law, debating whether the requirements impose an unconstitutional burden on some voters who can't obtain the necessary photo ID.

While the five justices delved into the merits and asked about the burdens involved with obtaining the IDs, they expressed some reluctance to rule on those merits because of procedural questions about who's suing and being named in the suit - no individuals specifically impacted by this law are named as plaintiffs and there's a question about whether Secretary of State Todd Rokita is the appropriate defendant.

Whether that becomes a focal point for the court remains to seen, but the justices' ultimate decision is guaranteed to be highly anticipated as it's the latest in a line of litigation ongoing since the state statute passed in 2005.

Justices heard arguments in League of Women Voters of Indiana and League of Women Voters of Indianapolis v. Todd Rokita, No. 49S02-1001-CV-50. The case is before the high court after the Indiana Court of Appeals in September struck down the law, finding it "regulates voters in a manner that's not uniform and impartial." This state case follows a separate 2008 ruling in which the U.S. Supreme Court upheld the law on federal grounds, but left the door open for as applied challenges and cases involving state constitutional claims.

In this case out of Marion County, the League of Women Voters claims the voter ID law violates Article 2, Section 2 of the state constitution that says citizens only need to meet age, citizenship, and residency requirements in order to vote in person. The plaintiffs also argue the statute violates the state constitution's equal privileges section because it doesn't treat all voters the same. Marion Superior Judge S.K. Reid had upheld the law in 2008, and the justices granted transfer in January to consider the issue.

Neither side was able to delve much into their own arguments during their respective 30 minutes since the justices dominated the discussion with pointed questions for each lawyer. Attorney Karen Celestino-Horseman represents the League of Women Voters, while Indiana Solicitor General Tom Fisher is representing the state.

Fisher argued that Indiana precedent from 1922 allows the legislature to regulate voting as needed, as long as the requirements aren't "grossly unreasonable and not practically impossible to comply with."

"The state voter ID law is a step in the process of modernizing elections, and this is another safeguard in making it more secure and giving them more integrity," Fisher said, adding that poll hours, voting booth time limits, and ballot setups all impose some type of restriction on voters. "All kinds of voting regulations impose some type of burden... those regulations are designed to make the process one of integrity. But that's never been the test on whether a regulation is constitutional."

But some justices pressed Fisher on that point during the hour-long discussion.

"There is a whole group out there that effectively has been denied the right to vote," Justice Robert D. Rucker said. "How can you convince us this is a system of integrity, if so many people can't find a way to vote? How does that inspire confidence that it's a system we can trust and rely on?"

Fisher said the difficulties have been overstated, and the state's put in place various ways for people who might be burdened to obtain the needed IDs. He said that individuals can also fill out provisional ballots allowing them to vote and have another 10 days to get the needed documentation.

But Celestino-Horseman said that 10-day period doesn't matter and won't change anything for those who can't get the documentation in the first place. She made the analogy about someone being required to have their voter ID number tattoed to their arm - that isn't the disparate treatment, she said, just as reaching into a wallet to produce a photo ID isn't the disparate treatment in this case.

"The disparate treatment is to those who vote in person, and have no other option than to vote except in person because they don't qualify for an absentee ballot," she said. "To do that, they must do the equivalent of bringing in a stack of documents in order to vote."

Justice Frank Sullivan wondered why no individuals have come forward as plaintiffs in the three election cycles - six or seven actual elections - since this law took effect, and he also questioned why the state hasn't had any documented cases of in-person fraud if this is such a big issue.

Posing a hypothetical, Justice Sullivan asked what would change in this case if the legislature decided, because of the current fiscal crisis, to impose a $250 charge for state IDs. Fisher responded that would be a "game-changer," but that lawmakers had thought of such issues when it debated voter ID. Celestino-Horseman said that didn't matter, because for some a $5 fee would be too much of a burden to obtain the documents.

Recognizing that some burden may exist on voters to obtain the required ID to cast a ballot in-person, justices hesitated on procedural issues since the case doesn't include any affected voters as plaintiffs.

"Should people have to go to that kind of trouble, just to exercise that single most fundamental right?" Justice Sullivan asked rhetorically. "(It's) a lot to have to go through just to do that. It seems like there's a real hardship on those people to produce those documents required. But on this record, we don't have those people before us."

Celestino-Horseman said that if the justices send the case back to Marion Superior Judge S.K. Reid for it to proceed, the league would have more time to flush out those issues and explore evidence on both sides.

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. 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

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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