Not often does an Indiana appellate court invalidate a state statute the way the Indiana Court of Appeals did Sept. 17. In striking down the state’s 4-year-old voter ID law, a three-judge appellate panel jumped into politically contentious waters and used a different legal analysis to reject the law that the nation’s highest court upheld last year.
The ruling drew strong, immediate reaction, including from Gov. Mitch Daniels, who described it as a “preposterous decision.”
“… It came in this case from a judge who’s been reversed before, and I expect that to happen again. This is an extreme decision that flies in the face of much better judges, frankly. I look forward to its reversal,” Daniels said. “I think it’s transparently (political), and it’s just bad law. It’s an act of judicial arrogance.”
Because many found Daniels’ comments objectionable, the Indiana State Bar Association issued a statement Sept. 18 noting, “… comments such as those attributed to the governor are not helpful in advancing appropriate respect for the courts and the judicial process, and honoring the separation of powers doctrine.
“The ISBA respects the governor’s, and every citizen’s, right to disagree with the decision. There are rules, however, that govern judicial conduct and appropriate procedures for dealing with complaints about the judiciary. Comments about individual judges are not the way to express disagreement with any court opinion.”
The Indianapolis Bar Association issued its own response few days later: “… As citizens, we have the right to be heard and to challenge rulings by judicial process. Indeed, our legal system is structured to permit judicial review to higher courts to afford litigants the ability to seek redress for unfavorable rulings. The court of judicial process is the appropriate forum for such relief; the court of public opinion is not.
“The IBA commends those who are unhappy with court rulings to the appropriate legal process for relief, not to the newspapers and airwaves to lodge personal attacks on the judges who are charged with the difficult task of preserving our constitutional rights. …”
Headed for appeal
Attorneys for both sides have said they will file transfer requests, so Indiana’s five justices are destined to be the ones to say whether the statue withstands or fails constitutional scrutiny. It could go either way, according to state constitutional law experts who’ve analyzed the ruling. But so far, both sides are sticking to their bullet points as they prepare their next appellate moves.
“The State’s long-held view is that the Voter ID law is constitutional, and we will vigorously defend the statute in arguing that position before the Indiana Supreme Court,” Indiana Attorney General Greg Zoeller said in a written statement, indicating his office will request transfer within the 30-day period.
In its 29-page ruling, the Court of Appeals reversed 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, the COA panel of 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.
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 licensed-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 legislation,” Judge Riley wrote.
Interpretation debatable
Reaction to the rationale used is mixed.
“The court’s analysis under the Equal Privileges and Immunities Clause is plausible but debatable,” said professor Dan Conkle at the Indiana University Maurer School of Law – Bloomington. “I think the Indiana Supreme Court could reasonably decide this case either way.”
He said the high court’s interpretation of this clause calls for substantial deference to legislative discretion, so the ultimate question is whether the law’s distinctions between in-person and absentee voting are reasonable. Justices could follow Judge Riley’s rationale from the Horseman precedent, or they could decide the voter ID requirement is reasonable for in-person voting but that extending it to absentee voting could render that method impractical.
“(That would mean) the law’s distinction can perhaps be justified on the basis of practical considerations,” Conkle said.
A fellow professor at the Bloomington law school described the appellate decision as “careful, guarded, and narrow.”
“The Indiana Supreme Court has previously said that is proper to guard particularly against fraud in absentee ballots, but this statute does the opposite, playing loosey-goosey with absentee ballots,” constitutional law professor Patrick Baude said. “Giving some voters privileges that others don’t have is a serious problem under this state’s constitution. The right to have our votes counted equally has deep roots in this state’s history and law, and if the legislature is still concerned about fraud, it can pass a statute that applies equally to everybody.”
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 because 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.
Indianapolis appellate attorney Jon Laramore, another constitutional law expert, pointed out that the Crawford decision was a facial challenge brought before the law had been applied in a general election. Since then, the law has been applied and there’s evidence that some otherwise eligible voters were precluded from voting because they didn’t meet the voter ID requirement, he said.
“That’s a difference between the two cases that might have influenced the outcome,” he said. “But the U.S. Supreme Court didn’t address all the issues surrounding voter ID, and in many contexts the Indiana Constitution has been held to offer more rights than the U.S. Constitution.”
Plaintiffs attorney William Groth, with Fillenwarth Dennerline Groth & Towe in Indianapolis, who represented the League of Women Voters with attorney Karen Celestino-Horseman at Austin & Jones in Indianapolis, said photo-identification laws are a national issue, and this decision will likely reverberate throughout the country.
Few statutes have been invalidated using the Article I, Sect. 23 analysis during the past decade, Groth said, and he wasn’t aware of any law being declared facially unconstitutional subsequent to a 1994 ruling in Collins v. Day, 644 N.E. 2d 72, 80 (Ind. 1994). Now, the justices have a chance to apply for the first time that Collins precedent regarding the Equal Privileges and Immunities Clause to a fundamental right of voting, he said.
Groth said the League of Women Voters also plans to file by mid-October its own transfer petition, relating to the court’s finding that the law isn’t a substantive voting qualification but a procedural regulation.
Since the ruling must be certified before it has any practical effect in invalidating the statute, no elections would be impacted until either the appellate court finalizes their opinion or the Supreme Court makes a decision on the issue. •
Not often does an Indiana appellate court invalidate a state statute the way the Indiana Court of Appeals did Sept. 17. In striking down the state’s 4-year-old voter ID law, a three-judge appellate panel jumped into politically contentious waters and used a different legal analysis to reject the law that the nation’s highest court upheld last year. 
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. 
“The court’s analysis under the Equal Privileges and Immunities Clause is plausible but debatable,” said professor Dan Conkle at the Indiana University Maurer School of Law – Bloomington. “I think the Indiana Supreme Court could reasonably decide this case either way.” 
