LEAGUE OF WOMEN VOTERS OF INDIANA, INC., аnd League of Women Voters of Indianapolis, Inc., Appellants (Plaintiffs below), v. Todd ROKITA, in his official capacity as Indiana Secretary of State, Appellee (Defendant below).
No. 49S02-1001-CV-50
Supreme Court of Indiana
June 30, 2010
929 N.E.2d 758
Conclusion
Owens‘s convictions and sentence are affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Heather L. Hagan, Ashley E. Tatman, Deputy Attorney Generals, Indianapolis, IN, Attorneys for Appellee.
Jon M. Greenbaum, Robert A. Kengle, Lawyers’ Committee for Civil Rights Under Law, Sri Srinivasan, Charles E. Borden, Micah W.J. Smith, O‘Melveny & Myers LLP, Washington, DC, Kathleen M. Sweeney, Schembs Sweeney Law, Indianapolis, IN, for Amicus Curiae Brief of Lawyers’ Committee for Civil Rights Under Law in Support of Appellants.
A. Douglas Stephens, Clermont, IN, for Amicus Curiae Brief of Lonna Rae Atkeson, Matt A. Barreto, Lorraine C. Minnite, Jonathan Nagler, Stephen A. Nuño and Gabriel Ramon Sanchez in Opposition to Defendant‘s Petition to Transfer.
Daniel B. Kohrman, AARP Foundation Litigation, Joshua D. Weinberg, Hogan & Hаrtson L.L.P., Washington, DC, Brenda Wright, Demos: A Network for Ideas & Action, Brighton, MA, John W. Borkowski, Hogan & Hartson L.L.P., South Bend, IN, for Amicus Curiae Brief of AARP and National Senior Citizens Law Center in Support of Appellants.
Michael K. Sutherlin, Michael K. Sutherlin & Associates, PC, Indianapolis, IN, Lloyd Leonard, League of Women Voters of the United States, Michael H. Jacobs, Justine E. Daigneault, Crowell & Moring LLP, Washington, DC, Amy T. Tridgell, Crowell & Moring LLP, New York, NY, for Amicus Curiae Brief of League of Women Voters of the United States.
Eric Koselke, Indianapolis, IN, M. Laughlin McDonald, American Civil Liberties Union, Inc., Voting Rights Project, Atlanta, GA, Anita Earls, Southern Coalition for Social Justice, Durham, NC, for Amicus Curiae Brief of Amici Curiae.
NAACP Legal Defense & Educational Fund, Inc., New York, NY, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, for Amicus Curiae Brief of The NAACP Legal Defense & Educational Fund, Inc. in Opposition to Defendant‘s Petition to Transfer.
DICKSON, Justice.
The sole plaintiffs in this case, the Indiana State and Indianapolis chapters of the League of Women Voters, brought this action seeking a declaratory judgment that the Indiana Voter ID Law violates
The relief the plaintiffs seek is a declaration that it was beyond the power of the legislature to require any voters to identify themselves at the polls using a photo ID.1
In 2005, an enactment of the Indiana General Assembly, Public Law 109-2005, referred to by the parties as the Indiana Voter ID Law, made several modifications to Indiana‘s election and motor vehicle laws. This Law was challenged in federal court where the plaintiffs claimed that it violated the First and Fourteenth Amendments of the United States Constitution as well as
In both the federal litigation and in the present appeal, the challenges to the Voter ID Law center on its requirement, as summarized by Justice Stevens for the United States Supreme Court, that:
... citizens voting in person on election day, or casting a ballot in person at the office of the circuit court clerk prior to election day, [must] present photo identification issued by the government.
... [T]he statute applies to in-person voting at both primary and general elections. The requirement does not apply to absentee ballots submitted by mail, and the statute contains an exception for persons living and voting in a state-licensed facility such as a nursing home. A voter who is indigent or has a religious objection to being photographed may cast a provisional ballot that will be counted only if she executes an appropriate affidavit before the circuit court clerk within 10 days following the election. A voter who has photo identification but is unable to present that identification on election day mаy file a provisional ballot that will be counted if she brings her photo identification to the circuit county clerk‘s office within 10 days. No photo identification is required in order to register to vote, and the State offers free photo identification to qualified voters able to establish their residence and identity.
Crawford, 553 U.S. at 185-86, 128 S.Ct. at 1613-14, 170 L.Ed.2d at 580-81 (internal citations and footnotes omitted).
In June 2008, the plaintiffs instituted the present state court action challenging the Voter ID Law.3 When their constitutional claims were rejected and their action dismissed by the trial court, the plaintiffs instituted this appeal, in essence claiming violations of
The plaintiffs argue that it is beyond the power of the legislature to require any voters to identify themselves at the polls using a photo ID for three reasons:
(1) The requirements of the Voter ID Law constitute a “qualification for voting” in violation of the Indiana Constitution which limits qualifications for voting to those specified in
(2) The Voter ID Law violates the prohibition on granting privileges or immunities to any citizen or class of citizens that do not equally belong to all citizens on the same terms (the “Privileges and Immunities Clause“) because it does not require a class of citizens, voters casting absentee ballots by mail, to comply with its provisions;5 and
(3) The Voter ID Law violates the Privileges and Immunities Clause because it does not require a class of citizens, voters who both live and vote in a state licensed care facility, to comply with its provisions.6
Emphasizing that voting is a fundamental right of all voters who meet the enumerated qualifications in
Article 2
Suffrage and Election
Section 1. All elections shall be free and equal.
Section 2.
(a) A citizen of the United States, who is at least eighteen (18) years of age and who has been a resident of a precinct thirty (30) days immediately preceding an election may vote in that precinct at the election.
(b) A citizen may not be disenfranchised under subsection (a), if the citizen is entitled to vote in a precinct under subsection (c) or federal law.
(c) The General Assembly may provide that a citizen who ceases to be a resident of a precinct before an election may vote in a precinct where the citizen previously resided if, on the date of the election, the citizen‘s name appears on the registration rolls for the precinct.
* * *
Section 14.
* * *
(c) The General Assembly shаll provide for the registration of all persons entitled to vote.
A.
The plaintiffs acknowledge that the Indiana General Assembly has the power to regulate the administration of elections but argue that the Voter ID Law is not merely a procedural regulation but rather “adds a new substantive voting qualification not authorized by the Indiana Constitution.” Appellants’ Br. at 18. This contention was presented and rejected in the federal litigation. Judge Barker, whose judgment was subsequently affirmed by the Seventh Circuit and by the United States Supreme Court in a 6-3 vote, explained:
The fact that Plaintiffs prefer alternative procedures to the photo identification does not create a Constitutional violation in requiring the latter. Nor is a Constitutional violation committed every time the General Assembly enacts a new voting regulation since, as we have previously noted, under Indiana law “the Legislature has power to determine what regulations shall be complied with by a qualified voter in order that his ballot may be counted, so long as what it requires is not so grossly unreasonable that compliance therewith is practically impossible.” Simmons v. Byrd, 192 Ind. 274, 136 N.E. 14, 17-18 (Ind.1922). Accordingly, Plaintiffs have failed to demonstrate that [the Voter ID Law] violates Indiana Constitution Article 2, section 2.
Ind. Democratic Party, 458 F.Supp.2d at 843. A federal court‘s interpretation of Indiana law is not binding on Indiana state courts. See Evan v. Poe & Assocs., 873 N.E.2d 92, 103 (Ind.Ct.App.2007), trans. not sought; Burk v. Heritage Food Serv. Equip., Inc., 737 N.E.2d 803, 812 n. 1 (Ind.Ct.App.2000), trans. not sought.
To support their claim that the Voter ID Law created prohibited voter qualifications rather than permissible election regulations, the plaintiffs argue that the legislature may not alter the voting qualifications established by the Indiana Constitution and that the Voter ID Law is not a permissible procedural regulation but instead is a statute that imposes a new property qualification and arbitrary, burdensome, and exclusionary conditions on the right to vote of constitutionally eligible voters.
The plaintiffs rely primarily upon the early case of Morris v. Powell, 125 Ind. 281, 25 N.E. 221 (1890). At the time Morris was decided, the Indiana legislature had not yet enacted a general voter registration law, although authorized in 1881 to do so by an amendment to
The authorities universally hold that registration laws must be impartial, uniform and reasonable, giving to all who have a right to vote a fair and reasonable opportunity to exercise such right.
The Constitution not only confers upon the General Assembly the power to make illegal voting an impossibility by a proper system of registration, but it makes it the imperative duty of that body to exercise that power. The imposition of unauthorized burdens and qualifications not authorized by the Constitution upon a part of the citizens of the State is not an exercise of that power, and while we would regret to declare void any law having for its object the purity of elections, we can not so far forget our duty as to uphold a law so plainly in conflict with the fundamental law of the State as the section of the law under consideration.
Id. at 296, 25 N.E. at 226. The plaintiffs argue that the government identification card with an expiration date and a photograph, required by the Voter ID Law, is equivalent to the county auditor certificate found to be unconstitutional in Morris. Such government identification, they assert, should be considered an impermissible statutory “qualification” to vote, and thus violative of Section 2, “because it imposes an unnecessary and arbitrary burden on some voters.” Appellants’ Br. at 21-22.
Between 1881 and 1921,
In Simmons, the plaintiff challenged various statutes that required voters to register before taking part in elections, his claim based largely on the 1921 amendment‘s elimination of the registration clause from
If there is a provision, that all persons, possessing certain qualifications, shall be entitled to vote, there is also a provision, that all elections shall be free and equal. It is as much the duty of the legislature to pass measures for carrying the latter as for carrying the former provision, into effect.... When the ballot-box becomes the receptacle of fraudulent votes, the freedom and equality of elections are destroyed.
Simmons, 192 Ind. at 285, 136 N.E. at 17-18 (quoting People v. Hoffman, 116 Ill. 587, 616, 5 N.E. 596, 611 (1886)). Simmons also noted that, despite the omission of the registration clause from
Being charged by the constitution with the duty to “provide for the registration of all persons entitled to vote,” and to enact such laws governing registration and the holding of elections that “all elections shall be free and equal,” the legislature has power to determine what regulations shall be complied with by a qualified voter in order that his ballot may be counted, so long as what it requires is not so grossly unreasonable that compliance therewith is practically impossible.... [S]ince the legislature has power to provide by law for the registration of all voters, it has power to exclude from the privilеge of voting those persons who refuse or neglect to register a reasonable number of days before the election.
Id. at 286, 136 N.E. at 18.
The plaintiffs are correct that the legislature may not by statutory enactment add a substantive qualification to the right to vote assured by
B.
As an additional argument claiming that the Voter ID Law violates
The plaintiffs contend that the Voter ID Law is not universally applicable to all voters because it does not apply to voters who mail in an absentee ballot or those who live in a state licensed care facility housing the voter‘s polling place. They argue that, to obtain the required Indiana photograph identification card, “a would-be voter must present the original or certified copy of her birth certificate, a certificate of naturalization, a U.S. Veteran‘s photo identification, a U.S. military photo identification, or a U.S. passport,” many of which involve significant fees and/or hardship to obtain. Appellants’ Br. at 22-23. The plaintiffs assert that these requirements make the Voter ID Law “burdensome, exclusionary and disqualifying as to some voters,” particularly non-drivers and college students. Id. at 23.
As to uniformity, we acknowledge that the Voter ID Law creates exceptions to its general requirement for government-issued photo identification as to mail-in absentee voters and for voters living in state licensed care facilities which house the voter‘s polling place. These exceptions, however, do not undermine the uniformity of the photo identification requirement for in-person voting. They apply only with respect to special alternative voting accommodations in which the photo identification requirement would be impracticable, unnecessary, or of doubtful utility. Such special exceptions no more create a fatal lack of uniformity in the Voter ID Law than do the statutory provisions authorizing mail-in absentee voting, early voting, and other accommodations that allow voting apart from in-person voting at regular polling places on election day invalidate Indiana‘s general election scheme for non-uniformity. They represent specific legislative regulations associated with additional accommodations extended by the legislature to provide alternatives for voters for whom in-person voting on election day would be difficult or impossible.
We share the assessment expressed by Justice Stevens that “we cannot conclude that the [Indiana Voter ID] statute imposes ‘excessively burdensome requirements’ on any class of voters” and that, considering the statute‘s broad application to all Indiana voters, “it ‘imposes only a limited burden on voters’ rights.‘” Crawford, 553 U.S. at 202-03, 128 S.Ct. at 1623, 170 L.Ed.2d at 590-91 (internal citations omitted).10 The burdens occasioned by the Voter ID Law serve numerous substantial interests relating to the use of technology to modernize and to protect the integrity and reliability of the electoral process. We find that the requirements of the Indiana Voter ID Law, while enhancing the procedural burdens associated with the voting process, are not sufficiently unreasonable.
We therefore reject the plaintiffs’ claims of facial unconstitutionality under
Part II. Equal Privileges and Immunities—Article 1, Section 23
The plaintiffs contend that the Voter ID Law violates the Equal Privileges and Immunities Clause of the Indiana Constitution: “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”
In Collins v. Day, 644 N.E.2d 72 (Ind.1994), this Court engaged in a comprehensive review of the history and purposes animating the adoption of Section 23 as part of Indiana‘s 1851 Constitution and of the subsequent case law, particularly our early decisions that were contemporaneous with its adoption and which were “accorded strong and superseding precedential value.” Id. at 77. Synthesizing history, text, and subsequent case law, we adopted a superseding analytical formulation that, when statutes grant unequal privileges or immunities to differing persons or classes of persons, the Equal Privileges and Immunities Clause imposes two requirements: “First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics [that] distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated.” Id. at 80. In addition, “in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion.” Id.
Employing the first Collins factor, and contrasting the in-person and absentee voters, the plaintiffs generally contend that the photo identification requirement is not reasonably related to the inherent characteristics that distinguish these two classifications of voters. The Voter ID Law requires proof of identification for in-person voters but not for persons who vote by mailing in an absentee ballot. The plaintiffs argue that these two classifications are distinguished on the basis that mail-in absentee ballots require heightened security and that this difference does not rationally support imposing additional identification requirements upon in-person voters. They also assert that the preferential treatment accorded mail-in absentee voters is not reasonably related to the distinctions between the classes.
The first factor in the Collins analysis involves considering both the nature of the characteristics that distinguish the classes and the relationship between the disparate treatment and such characteristics. Under this first factor, a statute may result in different treatment for different classifications of pеople without offending Section 23 if both (a) the disparately treated classifications are rationally distinguished by distinctive, inherent characteristics, and (b) such disparate treatment is reasonably related to such distinguishing characteristics. Ledbetter v. Hunter, 842 N.E.2d 810, 813 (Ind.2006); Collins, 644 N.E.2d at 79.
The plaintiffs first compare the classifications of in-person voters with mail-in absentee voters. These two classifications are principally distinguished by the fact that an in-person voter, unlike a mail-in absentee voter, personally appears before election officials who can verify the identity of the person seeking to cast a vote. The plaintiffs urge that the photo identification requirement for in-person voters does not reasonably relate to the inherent differences between in-person voters and mail-in absentee voters.
The plaintiffs argue in part that, because the nature of absentee ballots requires a heightened security, the imposition of higher identification security on in-person voters is not reasonably related to the differences between the classifications. This interest in heightened security may be of particular concern in the regulation of absentee voting, but it is not determinative on the issue presented. The plaintiffs argue that the special treatment provided to mail-in absentee voters “do[es] not support the claimed purpose of the Photo ID Law.” Appellants’ Br. at 32. But such focus on the “purpose” of the Law is not
More significantly, other critical attributes distinguish the identified disparately treated classes, especially the practicability of requiring and efficaciously utilizing photo identification for mail-in absentee voters, in contrast to in-person voters. For ballots received by mail, there is no opportunity for an election official to personally compare the voter with the voter‘s photo identification to verify identity. Absentee ballots “reach the hands of election officials outside of the confines of the Election Day polling place.” Horseman v. Keller, 841 N.E.2d 164, 172 (Ind.2006). The plaintiffs do not propose any method by which a photo identification requirement could be effectively utilized to verify the identity of a mail-in absentee voter. Legislation is not constitutionally deficient for failing to impose an unenforceable, useless requirement. Wе find that not requiring photo identification for mail-in absentee voters is reasonably related to the inherent distinctions between such voters and those voting in person. We decline to find that the Voter ID Law‘s failure to require photo identification of mail-in absentee voters violates the Indiana Equal Privileges and Immunities Clause.
The plaintiffs assert multiple arguments with respect to the Voter ID Law‘s provision regarding certain voters living and voting in state licensed care facilities. One of the statutes comprising the Voter ID Law provides: “A voter who votes in person at a precinct polling place that is located at a state licensed care facility where the voter resides is not required to provide proof of identification before voting in an election.”
Using the first factor of the Collins methodology, the plaintiffs assert that the statute violates Section 23 by permitting residents of state licensed care facilities to vote at their residence without photo identification while requiring such identification as a prerequisite to voting by other seniors living elsewhere. They argue that “the distinctions between in-person senior citizen voters are not reasonably related to thе different treatment accorded by the [Voter ID] Law.” Appellants’ Br. at 40. The plaintiffs also employ the second Collins factor, arguing that the statute grants preferential treatment to residents of certain state licensed care facilities but “does not grant similar relief to the elderly who are able to remain out in the community but who would have the same difficulties in procuring the requisite identification.” Id. at 43. The plaintiffs thus assert that such privileged classification is not “open to any and all persons who share the inherent characteristics [that] distinguish and justify the classification” nor is the “particular classification ... extended equally to all such persons.” Id. at 42-43 (internal citation omitted).
The relief sought by the plaintiffs is that the entire Voter ID Law be declared unconstitutional, not the overturning of the special exception for voters living in state licensed care facilities that serve as precinct polling places on election day. In light of the relatively extremely small number of voters excluded from the photo identification requirement under this exception, even if arguably violative of Section 23, we find that it represents a minor
It is almost impossible to provide for every exceptional and imaginary case, and a legislature ought not to be required to do so at the risk of having its legislation declared void, even though appropriate and proper as applied to the general subject upon which the law intended to operate.
Dvorak, 796 N.E.2d at 240 (quoting Collins, 644 N.E.2d at 80 (quoting Cincinnati, Hamilton & Dayton Ry. Co. v. McCullom, 183 Ind. 556, 561, 109 N.E. 206, 208 (1915))). Applying Dvorak, we find that granting a special privilege to residents of state licensed care facilities to vote at their residence without photo identification constitutes only a minor insubstantial variation that does not render sufficient disparate treatment to warrant judicial invalidation under Section 23.
Finally, in determining whether Section 23 is violated, we “must exercise substantial deference to legislative discretion.” Collins, 644 N.E.2d at 80. Given the scope of the undertaking embraced in the Voter ID Law‘s efforts in enhancing the integrity of the electoral process and its attempt to tailor its operation to a significant variety of circumstances, we conclude that the possible absence of precise congruity in application to all voters represents a legitimate exercise of legislative discretion warranting our deference.
Conclusion
We conclude that it is clear on the face of the complaint that the plaintiffs, as a matter of law, are not entitled to the relief sought. It is within the power of the legislature to require voters to identify themselves at the polls using a photo ID.
This result may contrast with a somewhat analogous case in our sister state of Missouri, Weinschenk v. State, 203 S.W.3d 201 (Mo.2006). In that case, particular voters sued to block enforcement of a 2006 Missouri statute requiring registered voters to present certain types of photo ID to vote. Ms. Kathleen Weinschenk and the others claimed that the new law required them and other voters—particularly those who are low-income, disabled, or elderly, and who do not have driver‘s licenses—to spend money to obtain the necessary documents such as birth certificates in order to obtain the requisite photo ID in violation of the Missouri Constitution‘s provisions relating to equal protection and the right to vote. Id. at 204.13 The Missouri Su-
Not only do the constitutions of Indiana and Missouri vary, but also our statute differs from Missouri‘s—notably, a requisite photo ID can be obtained from the Indiana Bureau of Motоr Vehicles at no cost,
We affirm the judgment of the trial court granting the appellee‘s motion to dismiss and rejecting the plaintiffs’ claims that the Indiana Voter ID Law contravenes
SHEPARD, C.J., and SULLIVAN and RUCKER, JJ., concur.
BOEHM, J., dissents with separate opinion.
BOEHM, Justice, dissenting.
I respectfully dissent. In broad brush, the issue in the federal constitutional challenges to Indiana‘s voter identification law was whether the burdens this requirement imposed on some citizens’ right to vote were severe enough to overcome the presumption we give to all acts of the General Assembly. The Supreme Court of the United States resolved that issue against the plaintiffs, at least as far as any provision of the Federal Constitution is concerned. Crawford v. Marion County Election Bd., 553 U.S. 181, 128 S.Ct. 1610, 1615, 170 L.Ed.2d 574 (2008). The majority for the most part addresses this case as if that were the issue before us today. The majority categorizes the voter ID requirement as a regulation implementing the registration requirement and concludes that a regulation is valid if “reasonable and uniform.” The majority dismisses the acknowledged problems that some voters may have in obtaining a voter ID as justified by perceived benefits in the integrity of the election.
As I see it, the state constitutional claim is quite different. The principal issue in this case is not a balancing of the relative benefits, if any, of a voter ID requirement against the problems that requirement creates for some citizens, if perhaps relatively few. The central question is who gets to resolve that issue under the Indiana Constitution. Under our Constitution some issues are immunized from revision by the temporary majority that comprises one session of the legislature, and must be addressed by the more deliberate and time consuming process of constitutional amendment.
One of the subjects that the Indiana Constitution reserves to the amendment process is the “qualifications” for voting. The question in this case is whether our State Constitution permits one session of the General Assembly to impose a voter ID requirement on Indiana voters, or requires that two successive sessions of the legislature agree that this measure is necessary, and then submit it to the voters for the people to make the final decision. For the reasons given below, I think both precedent and the language of the Indiana Constitution dictate that the voter ID requirement is an unauthorized qualification for casting a ballot. That requirement therefore can be imposed only if two successive sessions of the General Assembly and the voters of this state agree it is appropriate.
Over the years the Constitutional provisions relating to voting have been amended on five different occasions, for the most part relaxing eligibility requirements and expanding the right to vote to groups previously excluded.
The majority finds the voter ID to be a reasonable implementation of the registration requirement. The problem, of course, is that the plaintiffs claim that some eligible citizens are unable or unwilling for various legitimate reasons to obtain a voter ID, particularly in light of the recent restrictions designed to address national security concerns. We ordinarily give wide latitude to legislative judgment on matters of reasonable relationship in classifications created by statute. But any limitation on the right to vote surely strikes at one of the core values embodied in the Indiana Constitution. As Justice Mitchell of this Court put it 120 years ago:
Those provisions of the constitution which define the right of suffrage, and prescribe the qualifications of persons entitled to its exercise, and those statutes which look to the guarding of the purity of elections, and the integrity of the ballot-box, demand the gravest and most deliberate consideration whenever they are drawn into judicial discussion.
Morris, 125 Ind. at 297, 25 N.E. at 229. Legislation governing who can vote, and how, is a product of a legislature that depends on elections. Only the judiciary can preserve the rights of the citizens against dilution by the elected branches of government. To borrow a phrase from federal jurisprudence, whether a matter is properly viewed as a registration requirement validated by
To the extent language from Simmons v. Byrd, 192 Ind. 274, 136 N.E. 14 (1922), suggests a more deferential standard of review of legislation imposing requirements in the guise of regulating the registration process, I believe that opinion went significantly further than the facts of that case required and should not be followed. The only issue in that case was the validity of registration requirements that have long been accepted in this state and are minimally necessary to operate a registration plan as
The voter ID law before us today was passed 125 years after the Indiana Constitution was amended to authorize registration of voters. It enjoys no constitutional
This case comes to us as the grant of a motion to dismiss the complaint for failure to state a claim. We therefore accept the allegations of the complaint аs true. Noblesville Redevelopment Comm‘n v. Noblesville Assocs., 674 N.E.2d 558, 562 (Ind.1996). Plaintiffs allege that not all registered voters possess a valid photo ID, and the photo ID requirement has prevented or discouraged an indeterminate number of voters from casting a vote that counts. Plaintiffs cite instances of voters who present themselves at the polls without a photo ID and are allowed to cast a provisional ballot, but then are unable or unwilling to complete the process required within the next ten days for the vote to be counted. Plaintiffs also allege other instances where registered voters have simply been turned away for lack of a photo ID. These allegations are sufficient in my view to survive a motion to dismiss the complaint. Moreover, in their briefs plaintiffs elaborate on the bare bones of their complaint to allege that compliance with the requirements for a photo ID is not a simple process for every voter, and that recent steps designed to enhance the driver‘s license and photo ID have further complicated that process. For example, voters who have remarried in another state, or were not born in a hospital, may face extreme difficulty in obtaining a voter ID in their current name. If so, the voter ID law goes beyond regulating the proсess of election, and disqualifies voters whom the Indiana Constitution declares to be eligible to vote.
The photo ID cannot be justified as a registration requirement for a second reason: some of the restrictions placed on obtaining a state-issued ID do not address the legitimate concerns of preventing voter fraud. The process of obtaining a photo ID is the product of a regulatory scheme that has nothing to do with voter fraud. Its requirements were originally designed to regulate motor vehicle operators, and have now been expanded to include elaborate provisions aimed at limiting access to many facilities, for example commercial air travel, for national security reasons. Moreover, a photo ID is not required in the process of registering to vote, nor is a photo ID provided to a person who registers to vote. Crawford, 128 S.Ct. at 1614; Ind. Election Div., 2010 Indiana Voter Registration Guidebook 8-21. But it is available to persons who are not citizens or are under the age of eighteen and cannot vote. And the photo ID is required to have an expiration date. These provisions, designed to assure competence of motor vehicle operators, render the photo ID overinclusive as а voter registration requirement. It is also underinclusive because, in addition to carrying burdens unnecessary to a voter registration law, it fails to address the most obvious potentials for abuse of the registration process. To the extent we have instances of voter fraud, they
I also find problems in the majority‘s analysis of the plaintiffs’ claim that the voter ID statute violates the Equal Privileges and Immunities Clause found in
The General Assembly shall not grant to any class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.
On its face, the voter ID law grants a privilege—voting without a photo ID—to some classes of citizens, but not to all. The majority dismisses some of the plaintiffs’ claims as insubstantial because only a small percentage of voters are in the favored classifications. But a small number of voters can determine the outcome of an election, as the national experience with the 2000 Florida presidential election demonstrated so dramatically. And even if the majority were correct that the statute may be saved because it disenfranchises only a few voters, there is nothing in this record that permits us to determine the number of affected voters. Most importantly, I believe we all have an interest in a full and fair electoral process, and the right to vote is of value only if others are granted equal access to the polling booth. A statute that wrongly denies any group of citizens the right to vote harms us all, and therefore may properly be challenged as invalid in its entirety, not merely as to those directly affected. Thus I do not agree with the majority that the remedy the plaintiffs seek here—invalidating the voter ID requirement—is beyond their grasp.
The majority does not address the plaintiffs’ claim that the voter ID requirement violates Section 23 because it imposes substantially greater burdens on some citizens than it does on others. This claim also presents an issue for trial. We have recognized that “a statute that is constitutional on its face may be unconstitutional as applied to a particular plaintiff.” Humphreys v. Clinic for Women, Inc., 796 N.E.2d 247, 257 (Ind.2003). That doctrine has been held specifically applicable to claims under Section 23. Id. at 258. I think it is clear that a statute need not create the classification in order to violate Section 23 by conferring privileges on some citizens that are not available to all. To illustrate that point, consider a statute that provides that all voters must transport themselves to the polls on foot, but excludes from that requirement persons in wheelchairs and those over eighty years old. On its face these exclusions are reasonable, but the statute nonetheless has a dramatically different effect on persons who live at remote locations frоm the polling booth. Ordinarily a claim of unconstitutionality by reason of uneven impact on
As a final point, because the majority finds the law constitutional, the majority is not required to address the State‘s contention that these plaintiffs do not have standing to challenge the voter ID law, and does not do so. I believe all citizens have the standing to attack a statute that unconstitutionally denies any voter the right to exercise his or her electoral franchise. We all have an interest in an election that is lawful, and the right to vote is meaningful only if others of like mind are also entitled to vote according to the Constitution. Indeed, it is difficult to conceive of a right that is more clearly a “public right” than the right to vote and participate in a lawful election. It therefore may be enforced under the public standing doctrine long recognized by this Court and most recently reconfirmed in Cittadine v. Department of Transportation, 790 N.E.2d 978 (Ind.2003).
In sum, the plaintiffs’ allegations of substantial impediments to the exercise of the right to vote are sufficient to withstand a motion to dismiss the complaint. I would remand this case to permit the plaintiffs to attempt to prove their case.
In the Matter of ANONYMOUS, Respondent.
No. 73S00-0812-DI-626.
Supreme Court of Indiana.
July 1, 2010.