Artiсle II, § 8, of the Indiana Constitution authorizes the General Assembly to disenfranchise “any person convicted of an infamous crime.” David Snyder contends that because misdemeanor battery is not an “infamous crime,” his constitutional rights were violated when his voter registration was canceled after he was convicted and incarcerated for that crime. We agree that the crime in this case was not an “infamous crime” but also hold that the General Assembly has separate constitutional authority to cancel the registration of any person incarcerated following conviction, for the duration of incarceration.
Background
The General Assembly has enacted a statutory regime under which a person convicted of a crime and sentenced to an executed term of imprisonment is disenfranchised for the duration of incarceration. Ind.Code §§ 3-7-13-4, 3-7-13-5(a), 3-7-46-2 (2005). Such a person is ineligible to register to vote, I.C. § 3-7-13-4(b), and such a person who has already registered is removed from the official list of registered voters, I.C. §§ 3-7-46-1, -2. The statutes require that prompt notice be given to a prisoner whose voter registration is cancelled. I.C. §§ 3-7-46-8, -9. But once that prisoner is. released, he or she is again eligible to register. I.C. § 3-7 — 13—5(a). Nor are individuals disenfranchised who are on probation, on parole, subject to home detention, or placed in a community corrections program. I.C. § 3-7-13-6.
In 2008, the plaintiff, David R. Snyder, was convicted of Class A misdemeanor battery, Ind.Code § 35-42-2-l(a)(l) (2008), and sentenced by the trial court to imprisonment in the St. Joseph County Jail from March until May, 2009. On March 4, 2009, the St. Joseph County Board of Voter Registration sent Snyder a letter informing him that his voter registration had been cancelled in accordance with state law.
After his release, Snyder made no attempt to re-register, which he would have been entitled to do — the termination of his voting rights only applied to the period of incarceration. He instead filed a lawsuit in the United States District Court for the Southern District of Indiana, seeking de *769 claratory and injunctive relief under 42 U.S.C. § 1983 (2006), against State and County election officials (“State”). Snyder’s amended complaint alleged violations of the National Voter Registration Act of 1993, 42 U.S.C. § 1973gg et seq.; the Help America Vote Act of 2002, 42 U.S.C. § 15301 et seq.; the Civil Rights Act of 1964, 42 U.S.C. § 1971 et seq.; and the First and Fourteenth Amendments to the United States Constitution. The complaint also alleged a violation of the Infamous Crimes Clause of the Indiana Constitution, which gives the General Assembly power to disenfranchise persons convicted of an “infamous crime.” 1
As part of his prayer for relief, Snyder asked the Southern District to certify a quеstion to this Court asking whether Class A misdemeanor battery is an “infamous crime.” Pursuant to Indiana Appellate Rule 64(A), and upon a joint motion by Snyder and the State, Judge Lawrence certified the following question:
Does the term “infamous crime” as used in Article II, Section 8, of the Indiana Constitution include conviction of and imprisonment for a misdemeanor battery, so as to permit removal of the convicted person’s voter registration from the official list of registered voters pursuant to Indiana Code §§ 3-7-13-4 and 3-7-46-1 and -2?
Snyder v. King,
We agreed to consider this question by order dated February 21, 2011, Ind. Appellate Rule 64(B), ordered simultaneous briefing, and then held oral argument on April 21, 2011.
Discussion
The certified question is phrased narrowly, asking us only whether misdemean- or battery is an “infamous crime.” During oral argument, Snyder’s counsel asserted that we are confined to that narrow question and that the broader question of whether the Indiana statutes violate the Indiana Constitution on their face or as applied to Snyder is for Judge Lawrence to decide.
Much like the overall posture of this case,
see
Part III,
infra,
the requested narrowness of the certified question is troubling. Judge Tinder, while a judge on the Southern District of Indiana, noted that there are difficulties with concluding that disenfranchisement during incarceration for conviction of a non-infamous crime is unconstitutional undеr the Indiana Constitution.
United States v. Brown,
We take Judge Lawrence’s certified question as asking more broadly whether the relevant statutes run afoul of the Indiana Constitution, at least as applied to Snyder. Therefore, for practical and jurisprudential reasons, and having exercised our discretion to accept the certified question in the first instance, we revise and restate the certified question as follows: (1) whether misdemeanor battery is an “infamous crime” under Article II, § 8, of the Indiana Constitution; and (2) if not, whether cancellation of Snyder’s voter registration violated the Indiana Constitution.
A few matters should be clarified before proceeding to the merits of these questions. First, scarcely any right is more sacrosanct in a democratic society than the individual’s fundamental right of suffrage.
See, e.g., Reynolds v. Sims,
377
*770
U.S. 533, 555,
Second, the question in this case, like most constitutional issues, potentially has wide-reaching implications. This case does not involve the disenfranchisement of criminals for any period after incarceration; at issue here is the disenfranchisement of convicted prisoners
only
for the duration of incarceration. The disenfranchisement statute recites that it was enacted pursuant to the Infamous Crimes Clause, I.C. § 3-7-13-4(a), which grants power to the General Assembly both to disenfranchise and to render ineligible for election any person convicted of an “infamous crime,”
Lucas v. McAfee,
I
Turning to the merits of the revised certified questions, we consider first whether misdemeanor battery is an “infamous crime” for purposes of the Infamous Crimes Clause. Indiana courts have been asked on a handful of occasions to determine whether a particular offense falls within the Infamous Crimes Clause, and in each of those cases the offense was held to be an infamous crime.
See Crampton v. O’Mara,
Relying on our case law, Snyder argues that an infamous crime is a felony, and therefore misdemeanor battery is not an infamous crime. Contrary to the State’s assertions, this argument clearly is supported by the ease law.
See Crum,
Although the felony-misdemean- or distinction presents a bright-line rule and is supported by case law, we conclude that an infamous crime is
not
synonymous with a felony for purposes of the Infamous Crimes Clause. We presume that the framers carefully selected each word because of its particular meaning.
E.g., Nagy v. Evansville-Vanderburgh Sch. Corp.,
For its part, the State argues that the General Assembly has plenary power to define which crimes are infamous, and this too is supported by ease law. In
Baum,
the Court concluded that, at common law, the loss of civil or political privileges, such as the right to vote, was considered an
*772
infamous punishment.
Under the reasoning in
Baum,
the General Assembly can make any crime an infamous crime subject to disenfranchisement simply by imposing the infamous punishment of disenfranchisement. This circular reasoning would effectively erase the adjective “infamous” from the Infamous Crimes Clause. That is, the General Assembly could determine that all crimes are infamous, which would render the adjective “infamous” entirely superfluous. Again, we presume that the framers carefully chose each word and intended it to have an effective meaning.
E.g., Nagy,
We are thus presented with a situation where both parties’ arguments are grounded firmly in our case law but equally invalid under a plain reading of the constitutional text. Therefore, we think it is prudent to start from scratch and interpret the Infamous Crimes Clause anew.
Our method of constitutiоnal interpretation is well-established. When interpreting particular provisions of the Indiana Constitution, this Court looks to the common understandings of both those who framed it and those who ratified it.
Bayh v. Sonnenburg,
*773 A-l
Like many legal maxims, the definition of “infamous crime” varies depending on the context in which it is used. It has been said that there were two types of “infamy” at common law, “the one founded in the opinions of the people respecting the mode of punishment, the other in the construction of law respecting the future credibility of the delinquent.” Lord William Eden Auckland,
Principles of Penal Law
ch. 7, § 6, at 54 (London 1771) [hereinafter
Principles of Penal Law
],
quoted in Ex Parte Wilson,
We think that this Court erred in holding that an infamous crime, for purposes of the Infamous Crimes Clause, is one for which the General Assembly affixes an infamous punishment. History demonstrates that whether a crime is infamous for purposes of determining whether it warrants the loss of civil and political rights depends on the nature of the crime itself.
The legal concept “infamy” dates back more than 2,000 years to ancient Greece, where criminals who had committed certain heinous crimes were pronounced “infamous” and thereafter “prohibited from appearing in court, voting, making speeches, attending assemblies, and serving in the army” and thus prohibited from influencing public affairs. Walter Matthews Grant et al., Special Project: The Collateral Consequences of a Criminal Conviction, 23 Vand. L.Rev. 929, 941 (1970) [hereinafter Collateral Consequences ] (footnote omitted); see also Mir-jan R. Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study, 59 J.Crim. L., Criminology & Police Sci. 347, 351 (1968). This practice was subsequently used in ancient Rome, and, after the fall of the Roman Empire, it was incorporated into the primitive penal systems of the Germanic tribes inhabiting both continental Europe and England, where it was called “outlawry” and “civil death.” 4 Collateral Consequences, supra, at 942; Howard Itzkowitz & Lauren Oldak, Note, Restoring the Ex-Offender’s Right to Vote: Back *774 ground and Developments, 11 Am.Crim. L.Rev. 721, 722-23 (1973). In continental Europe, the cоncept survived the Middle Ages and continues to be used today, albeit to a far lesser degree. See Damaska, supra, at 351-56. But see Robin L. Nunn, Comment, Lock Them Up and Throw Away the Vote, 5 Chi. J. Int’l L. 763 (2005) (noting the growing international consensus that criminal disenfranchisement is illegitimate). The general concept of infamy was also retained in England after the Norman Conquest of 1066 and eventually became part of “attainder,” the consequences of which were forfeiture of property, corruption of blood, and loss of all civil privileges. Collateral Consequences, supra, at 942-43.
The practice of depriving certain criminals of their civil and political rights was transported here from England by our colonial predecessors, but the concept of “[cjivil death was rejected as part of the common law” after the American Revolution. Itzkowitz & Oldak, supra, at 724-25. Nevertheless, certain civil disabilities remained, as eleven state constitutions enacted between 1776 and 1821, including the Indiana Constitution of 1816, denied or authorized the denial of voting rights to those convicted of certain crimes. Id. at 725. Moreover, disenfranchisement was used as punishment for certain crimes in the Northwest Territory and the Indiana Territory. David D. Banta, The Criminal Code of the Northwest Territory, 9 Ind. Mag. of History 234, 239-43 (1913).
As for the period after Indiana achieved statehood, the recorded debates of neither the 1816 nor the 1850 constitutional convention offer much informatiоn regarding the Infamous Crimes Clause. 5 It is clear, *775 however, that the current provision was based on a similar provision of the Indiana Constitution of 1816, which provided that “[t]he General Assembly shall have full power to exclude from electing, or being elected, any person convicted of any infamous crime.” Ind. Const, art. VI, § 4 (1816). Under the 1816 constitution, there existed between 1824 and the 1850 Constitutional Convention a penal statute defining which crimes were infamous and the. consequences stemming from conviction of an infamous crime. R.S. 1843, ch. 54, § 79, at 999; R.S. 1838, ch. 26, § 79, at 220; R.L. 1831, ch. 26, § 79, at 195; R.L. 1824, ch. 29, § 71, at 150. Although different versions of the statute varied in which crimes were deemed infamous, the consequences stemming from conviction of an infamous crime remained the same: a person convicted of an infamous crime was “incapable of holding any office of trust, honor, or profit, voting at any election, serving as a juror, or giving evidence in any court of justice.” R.S. 1843, ch. 54, § 79, at 999.
This history not only demonstrates that disenfranchisement (along with the loss of other civil and political rights) was itself an infamous punishment, but it also suggests that, for purposes of the Infamous Crimes Clause, an infamous crime is one which by its own nature is infamous, irrespective of punishment.
Cf. Principles of Penal Law, supra,
§ 3, at 51-52 (“Corporal punishments, immediately affecting the body, and publickly [sic] inflicted, ought to be infamous in the estimation of the people; so should degradations from titles of honor,
civil incapacities,
brandings, and public exhibitions of the offender:
all which penalties should be applied with great caution, and only to offences infamous in their nature.”
(emphases added)). As explained
supra,
one type of infamy at common law rendered a witness incompetent to testify and was determined by the nature of the crime itself. The penal statute that existed under the 1816 Constitution treated the right to serve as a witness and submit evidence in court as a political right on par with the right to vote, the right to hold public office, and the right to serve as a juror.
Cf. State v. Rezendes,
Although the modern analog to the witness-incompetency rule primarily is justified by the credibility of a witness’s testimony, Ind. Evidence Rule 609 (adopted effective Jan. 1, 1994);
cf. Hatchett v. State,
Additionally, the common-law rule did much more than the modern impeachment rule by rendering the convict wholly incompetent. One of the consequences of closing the witness box to a convict was “that crimes, all imaginable crimes, [might] be committed with impunity, with sure impunity, on his person and in his presence.” 5 Jeremy Bentham, Rationale of Judicial Evidence 84-85 (London, Hunt & Clarke 1827), quoted in 1 Wigmore on Evidence, supra, § 519, at 649. Thus, rendering a convict incompetent to be a witness was similar to disenfranchisement in that the convict was prevented from raising his rights and participating in government. See also 1 Wayne R. LaFave, Substantive Criminal Law § 1.6(d), at 57 (2d ed. 2008) (“Where the purpose was in former times to render a witness incompetent ..., the term ‘infamous’ properly has reference to those crimes involving fraud or dishonesty or the obstruction of justice .... Where the term is used in connection with disbarment or disqualification to hold office, vote or serve on a jury, it generally has a similar meaning.” (footnote omitted)); 1 Francis Wharton, A Treatise on Criminal Law § 22a, at 33 (Philadelphia, Kay & Brother 9th ed. 1885) (“At common law, ‘infamy’ was held to attach to all crimes, a conviction of which impressed such a moral taint on the perpetrator as was supposed to require his incapacitation as a witness, and the suppression of his political rights.” (footnote omitted)).
History thus demonstrates that whether a crime is infamous for purposes of the Infamous Crimes Clause depends not on the nature of the punishment but on the nature of the crime itself.
A-2
Ordinarily, the doctrine of
stare decisis
requires that we apply “a principle of law which has been firmly established.”
Marsillett v. State,
We think that history establishes that аn infamous crime for purposes of the Infamous Crimes Clause is one that is by its nature infamous, irrespective of punishment. We would be more hesitant to depart from more than a century of precedent if this was the only problem, but *777 additional reasons persuade us that our departure from this rationale is warranted.
First, the Court’s analysis in
Crum, Baum,
and
Crampton
was perfunctory at best and seemingly adopted federal jurisprudence as a matter of course. But, of course, federal constitutional jurisprudence has no binding effect when interpreting the Indiana Constitution. This is particularly so in the present context, given that the Supreme Court’s interpretation of the Grand Jury Clause did not occur until 1885, more than 80 years after the Indiana Constitution was adopted.
6
Cf. State v. Oldner,
Second, the federal Grand Jury Clause and our Constitution’s Infamous Crimes Clause are in no way related, and the rationale for interpreting the Grand Jury Clause with a view toward the potential punishment is absent under the Infamous Crimes Clause. Requiring indictment by a grand jury as a precondition to prosecuting the accused protects individuals from being forced to defend themselves against unfounded and overzealous prosecutions.
See, e.g., Butler v. Wentworth,
We hold that whether an offense is an infamous crime for purposes of the Infamous Crimes Clause of the Indiana Constitution depends on the nature of the offense, not on the nature of the punishment. We therefore overrule this Court’s decisions in Crum, Baum, and Crampton insofar as they are grounded in the infamous nature of the punishment affixed to the respective crimes involved. We similarly disapprove of the decisions in Wilson and Taylor to the same extent. We do not, however, decide the validity of the essential holdings in those cases, and it may be that the particular crimes involved in those cases are by their nature infamous.
B
The conclusion that what constitutes an infamous crime is determined by the nature of the crime itself, rather than the nature of the punishment, merely begins the analysis. We still need to consider *778 which crimes are by their nature infamous and to determine whether misdemeanor battery falls within that category.
B-l
Snyder argues that misdemeanor battery is not an infamous crime because conviction thereof would not have rendered a witness incompetent at common law. In other words, he contends that an infamous crime for purposes of the Infamous Crimes Clause should be interpreted to be consistent with the common law of evidence. This argument has some strength in light of the historical connection between disenfranchisement and witness incompetency. See Part I-A-l, supra.
At common law, a person was rendered infamous and therefore incompetent to serve as a witness if he or she was convicted of treason,
7
felony, or any species of
crimen falsi
8
E.g., United States v. Block,
We decline to follow this approach, primarily because the general common law applicable to witness incompetency, so far as we can tell, has never been the law in Indiana.
See, e.g., Glenn v. Clore,
Although the 1843 statute defined infamous crime and included disenfranchisement along with witness incompetency as a consequence of conviction, we decline to adopt the crimes enumerated in that statute as the proper interpretation of the Infamous Crimes Clause of the Constitution. The 1843 Revised Statutes made several crimes not listed as “infamous” punishable by disenfranchisement alone. See R.S. 1843, ch. 54, § 15, at 963 (grand larceny); id. § 16, at 963 (petit larceny); id. § 19, at 964 (receipt of stolen property, if principal were disenfranchised); id. § 22, at 964-65 (altering brands or marks on certain animals with intent to steal); id. § 34, at 968 (professional gambling); id. § 77, at 976 (malicious prosecution); see also R.S. 1843, ch. 5, § 158, at 153 (voter fraud). Under the 1843 statutes, crimes such as malicious prosecution and voter fraud were not deemed “infamous” because conviction thereof did not result in the loss of all the civil and political rights mentioned in the Infamous Crimes Statute — conviction resulted only in disenfranchisement. But this does not mean that malicious prosecution and voter fraud were not infamous crimes for purposes of Article VI, § 4, of the 1816 Constitution.
Furthermore, the crimes listed as infamous under the 1843 statute were not punishable by disenfranchisement under the 1852 Revised Statutes, the first statutes enacted under the 1851 Constitution. The only crimes punishable by disenfranchisement were grand larceny, 2 R.S. 1852, pt. 3, ch. 5, § 19, at 403-07; petit larceny, id. § 20, at 408-09; receipt of stolen property, id. § 22, at 409; altering brands or marks on certain animals with intent to steal, id. § 25, at 409; professional gambling, id. § 38, at 417-18; malicious prosecution, 2 R.S. 1852, pt. 3, ch. 6, § 18, at 432-33; voting or attempting to vote twice, id. § 57, at 442; and making threats or *780 offering a reward to procure election, id. § 61, at 442. Unlike the statutes between 1824 and the Constitutional Convention of 1850, the 1852 criminal code did not define which crimes were deemed infamous, nor did the 1852 election code, see 1 R.S. 1852, ch. 31, § 28, at 263 (disenfranchising persons convicted of an infamous crime but not defining the term).
B-2
The fact that the General Assembly in 1843 listed these nine crimes as infamous does not
a fortiori
transform them into a constitutional test.
10
Also important is what those who ratified the Constitution understood it to mean.
E.g., Richardson v. State,
As discussed above, disenfranchisement historically was an infamous punishment imposed on offenders convicted of certain heinous crimes, and this practice was justified primarily on the penological theory of retribution, though it also was thought to serve the theory of deterrence. Collateral Consequences, supra, at 942; see also Damaska, supra, at 351 (“Infamy, similar in consequences to that found in Athens, seems to have been a widespread way of degrading citizens convicted of certain crimes involving moral turpitude.”). Under this rationale, “most vile” likely would mean crimes involving grave moral depravity and a callous indifference to thе rights of the crime’s victim(s). If the Infamous Crimes Clause embodies the traditional rationale of disenfranchisement and civil death, then it would be sensible to impose such a severe form of punishment on the most severe morally deprived criminals. But this test is highly problematic because it is too closely analogous to the definition of “felony” (which we have rejected as the meaning of infamous crime). See Part I, supra. Moreover, would it include only crimes that are mala in se and not crimes that are mala prohibita, a distinction laced with its own ambiguities? 1 LaFave, supra, § 1.6(b), at 51-55. Who determines whether a crime is morally “most vile”? Do the particular facts of the crime matter — i.e., would only some, but not all, murders, rapes, and kidnappings be infamous? Is it possible to establish judicially manageable neutral principles in furtherance of such an understanding?
*781
We do not answer these questions because we conclude that the Infamous Crimes Clause was
not
intended to be used primarily as a retributive or deterrent mechanism of punishment. It is a cardinal principle of constitutional interpretation that our Constitution should be interpreted as a whole.
E.g., Tucker v. State,
We think instead that the Infamous Crimes Clause is properly understood primarily as a regulatory measure. While history clearly demonstrates its punitive characteristics, its primarily regulatory character is clearly demonstrated by its placement in Article II, which seeks to regulate suffrage and elections, and the justification underlying criminal disenfranchisement provisions generally.
Cf. Trop v. Dulles,
The most common regulatory justification for criminal disenfranchisement provisions is that they preserve the integrity of elections.
Bailey v. Baronian,
The California Supreme Court adopted the same justification but articulated a narrоwer standard in
Otsuka v. Hite,
Although the California Supreme Court found the criminal disenfranchisement provision justified by the purity-of-the-ballot-box rationale of the Alabama
Washington
case,
id.,
Given our conclusion that, from the placement of Article II, § 8, in the Suffrage and Elections article of the Constitution and the disapproval in our Bill of Rights of punishment that exacts vindictive justice, the purpose of the Infamous Crimes Clause is primarily to preserve the integrity of elections, we find the Otsuka standard more consistent with our own Constitution than the Washington standard. We hold that an infamous crime is one involving an affront to democratic governance or the public administration of justice such that there is a reasonable probability that a person convicted of such a crime poses a threat to the integrity of elections. These types of crimes are “most vile” in that they undermine the system of government established by our Constitution. Persons committing such crimes may be presumed to pose a bona fide risk to the integrity of elections. An infamous crime may include some felonies and some misdemeanors, but crimes marked by gross moral turpitude alone are not sufficient to render a crime infamous for purposes of the Infamous Crimes Clause.
Prototypical examples of infamous crimes are treason, perjury, malicious prosecution, and election fraud, all of which were subject to disenfranchisement for at least 26 years prior to the 1850 Convention,
see
R.L. 1824, ch. 29, § 71, at 150;
id.
§ 31, at 144; R.L. 1824, ch. 35, § 6, at 167; R.S. 1843, ch. 54, § 79, at 999; R.S. 1843, ch. 53, § 77, at 976; R.S. 1843, ch. 5, § 158, at 153. Although most of these examples involve elements of deceit and dishonesty,
cf Oldner,
B-3
It is clear that Snyder was not convicted of an infamous crime. The General Assembly has not enacted a statute classifying Class A misdemeanor battery as an infamous crime based on the nature of the crime. Rather, the statute under which Snyder was disenfranchised arguably classifies infamous crimes based on the nature of the punishment — i.e., incarceration.
Even hаd the General Assembly attempted to classify this crime as infamous, we do not think that misdemeanor battery, as defined by statute, is by its nature an infamous crime. In Indiana, a person commits Class A misdemeanor battery if he or she “knowingly or intentionally touches another person in a rude, insolent, or angry manner” and:
(A) it results in bodily injury to any other person;
*783 (B) it is committed against a law enforcement officer or against a person summoned and directed by the officer while the officer is engaged in the execution of the officer’s official duty;
(C) it is committed against an employee of a penal facility or a juvenile detention facility (as defined in IC 31-9-2-71) while the employee is engaged in the execution of the employee’s official duty;
(D) it is committed against a firefighter (as defined in IC 9-18-34-1) while the firefighter is engaged in the execution of the firefighter’s official duty;
(E) it is committed against a community policing volunteer:
(i) while the volunteer is performing the duties described in IC 35-41-1 — 4.7; or
(ii) because the person is a community policing volunteer; or
(F) it is committed against the state chemist or the state chemist’s agent while the state chemist or the state chemist’s agent is performing a duty under IC 15-16-5.
I.C. § 35-42-2-l(a)(l).
The circumstances surrounding Snyder’s conviction are unclear because there is no record in this case, but it is clear from the statutory scheme that a conviction for Class A misdemeanor battery has no bearing upon the integrity of the election process. There is nothing to suggest that Snyder battered an election official, and, even had he done so, it is questionable whether it would pose the type of risk to the integrity of elections that would justify disenfranchisement. In short, Snyder was not convicted of an infamous crime.
II
The fact that Snyder was convicted of a non-infamous crime does not necessarily lead to the conclusion that disenfranchising him for the duration of incarceration violated the Indiana Constitution. The parties have proceeded under the unspoken assumption that the Infamous Crimes Clause applies to this case. This likely is based, at least in part, on the wording of the Prisoner Disenfranchisement Statute, which provides that “[a] person who is (1) convicted of a crime; and (2) imprisoned following conviction; is deprived of the right of suffrage by the general assembly pursuant to Article 2, Section 8 of the Constitution of the State of Indiana.” I.C. § 3-7-13-4(a) (emphasis added).
The Indiana Constitution has not been violated here. The General Assembly exercises its power under the Infamous Crimes Clause when it affixes disenfranchisement as a distinct punishment for conviction of an infamous crime.
See Dorsey v. State,
The statute under which Snyder was disenfranchised did not confer power on trial courts to impose disenfranchisement as part of Snyder’s sentence. Rather, the General Assembly simply has provided *784 that persons convicted of a crime and consequently incarcerated are deprived of the right to vote while they are incarcerated. In short, Snyder was not disenfranchised pursuant to the Infamous Crimes Clause.
The essential question remains: Does the General Assembly have power under our Constitution to disenfranchise a person convicted of a crime and sentenced to an executed term of incarceration, for the duration of incarceration?
A
Snyder argues that because the Constitution gives the General Assembly power to disenfrаnchise those convicted of infamous crimes it necessarily implies that the General Assembly lacks power to disenfranchise any person not so convicted. We disagree. As explained above, the Infamous Crimes Clause authorizes the General Assembly to affix disenfranchisement as a distinct punishment for conviction of an infamous crime. It is therefore necessarily implied that the General Assembly cannot affix disenfranchisement as a punishment for a non-infamous crime.
See, e.g., State ex rel. Thomas v. Williams,
The penal system contemplates that persons imprisoned upon conviction for any crime can be disenfranchised for the period of incarceration. It is simply an incident to or a collateral consequence of such incarceration. The person has been found guilty beyond a reasonable doubt and the trial court has concluded that the crime and the criminal warrant the deprivation of the criminal’s physical liberty. Although a prisoner does not forfeit all constitutional rights, one who is incarcerated loses many rights enjoyed by non-incarcerated persons.
Hudson v. Palmer,
At various points, Snyder has argued that Indiana is alone in disenfranchising convicted prisoners. On the contrary, “[t]he nation seems to be nearing a consensus that the presently incarcerated should not have the right to vote.”
Developments in the Law
— The
Law of Prisons: One Person, No Vote: The Laws of Felon Disenfranchisement,
115 Harv. L.Rev. 1838, 1939, 1942 (2002) (footnote omitted). The only states that allow convicted prisoners to vote are Maine and Vermont; the remaining 48 states and the District of Columbia preclude at least some incarcerated prisoners from voting.
Id.
at 1942 n. 20;
see also Simmons v. Galvin,
Snyder’s argument implies that the Indiana Constitution compels the General Assembly either to release imprisoned convicts on Election Day so that they may vote at the polls, to provide polling places at the myriad correctional and jail facilities throughout the State, or to provide incarcerated convicts with absentee ballots. History negates this implication. Under the 1852 election code, elections were all in person and by ballot. 1 R.S. 1852, ch. 31, §§ 5, 16-19, at 261, 262. No provision existed requiring the County Sheriff or the State Prison Warden to transport convicted prisoners to their respective precincts so that they might vote. In short, Snyder has not pointed to any historical evidence suggesting that convicted prisoners in Indiana were permitted to vote around the time the Constitution was ratified, and the applicable statutes of the time provide no mechanism by which such persons could have voted. Moreover, we perceive no state constitutional requirement that the General Assembly extend the absentee ballot to convicted prisoners.
Cf. Griffin v. Roupas,
In sum, the General Assembly may exercise its police power to deprive all convicted prisoners of the right to vote for the duration of their incarceration. A convicted prisoner is different from a pretrial detainee, who has yet to have his or her day in court. The loss of political and civil rights upon conviction and imprisonment is simply a collateral consequence thereof.
B
Snyder also argues that disenfranchising misdemeanants, even while incarcerated, violates the Equal Protection Clause of the Fourteenth Amendment and that we should interpret the Indiana Constitution in a way that does not violate the federal constitution. This argument was raised for the first time in Snyder’s response brief, which was filed simultaneously with the State’s response, so the State was not given an opportunity to address this argument in its briefs.
In addition, there is nothing in the language of the certified question asking us to address the relationship, if any, between the state constitutional question at hand and the federal constitution, nor do we perceive any need for us to do so. Under these circumstances, we think it proper for us to focus on the Indiana Constitution and leave interpretation of the Equal Protection Clause to Judge Lawrence.
C
We hold that the Indiana General Assembly has authority under its gen *786 eral police power to disenfranchise persons incarcerated upon conviction of a crime, so long as the disenfranchisement lasts only for the duration of incarceration. That the statute cites the Infamous Crimes Clause as the basis for its enactment, instead of the general police power, does not render it invalid. This language in no way affects the purpose or effect of the statute, and wе will not invalidate an otherwise constitutional statute merely because it includes an unnecessary statement of authority.
Ill
Finally, the troubling posture of this case warrants further comment. As we have noted before, addressing an issue of state constitutional law in the context of a certified question contravenes at least two fundamental principles of the judicial function.
See Citizens Nat’l Bank of Evansville v. Foster,
First, it is a cardinal principle of the judicial function that we will pass upon the constitutionality of a coordinate branch’s action only when it is absolutely necessary to do so. More than a century ago, this Court stated:
[C]ourts will not pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause. This court has repeatedly held that questions of this character will not be decided unless such decision is absolutely necessary to a disposition of the cause on its merits.
State v. Darlington,
A second cardinal principle of the judicial function is that courts should not issue advisory opinions but instead should decide cases only on the specific facts of the particular case and not on hypothetical situations.
Id.; accord Ashwander,
Admittedly, certified questions are by their nature quasi-advisory in that the entire case is not before this Court. Our answer to a certified question simply “advises” the federal court on an issue of Indiana law, and it may or may not be dispositive of the entire case. But accepting a certified question on state constitutional law, particularly where there is no record, implicates greater concerns related to the constitutional function of this Court.
Snyder brought his claim in the Southern District under 42 U.S.C. § 1983, alleging that the State violated his federal constitutional and federal statutory rights. The only federal statutory claim he developed in his amended complaint was his allegation that the State violated his rights under the National Voter Registration Act (NVRA), which “prohibits the State from removing the name of any registrant from the official list of eligible voters except ‘as provided by State law, by reason of criminal conviction or mental incapacity.’ ” Pl.’s Am. Compl. ¶ 14, at 5 (quoting 42 U.S.C. § 1973gg-6(a)(3)(B)). He argued that his rеmoval was in violation of State law because the Infamous Crimes Clause allows removal from the list of registered voters only persons convicted of an infamous crime and he was not convicted of such a crime. Thus, his federal statutory claim under the NVRA is dependent upon a violation of state law — the NVRA, according to Snyder, transforms a violation of state law into a violation of federal law.
We are not concerned with the merits of Snyder’s theory in this regard. But we are concerned that, despite the fact that Snyder apparently believes that his claim in large part depends on an alleged violation of state constitutional law, he filed his § 1983 claim in federal court. We note that state courts have concurrent jurisdiction with federal courts over § 1983 claims.
Love v. Rehfus,
Even if Snyder wanted to litigate his federal claims in federal court, which he is clearly entitled to do, we note that either he or the State could have asked Judge Lawrence to stay the federal case pending resolution of this complicated issue of state law in the state courts.
See Railroad Comm’n of Texas v. Pullman Co.,
These concerns are not merely academic. The posture of this case has rendered review of this important question of state constitutional law difficult. First, the issues were not fully developed. Second, the briefs were not very helpful in discussing the history and purpose of the Infamous Crimes Clause, which likely is due to the lack of a clearly refined issue. Third, there is no record. As a result, we are left with questions as to whether this case is justiciable in the first instance. There is nothing in the record to suggest that Snyder actually was prevented from voting by operation of the statute. It is clear that he did not attempt to re-register, and if this were the only impediment to his voting, our review might be precluded due to his failure to exhaust administrative remedies.
Although we have accepted and answered the certified question in this case, we have not done so without hesitation. While there are benefits to the certified question — namely, ensuring uniform interpretation and application of Indiana law— there are significant pitfalls. See generally Randall T. Shepard, Is Making State Constitutional Law Through Certified Questions a Good Idea or a Bad Idea?, 38 Val. U.L.Rev. 327, 336-51 (2004) (discussing the advantages and disadvantages of certified questions concerning state constitutional law). Future litigants should bear this in mind when deciding whether to proceed in state court or in federal court, and they should consider any procedural mechanisms that may be available for litigating a state constitutional law claim in state court while a federal claim is pending in federal court.
Conclusion
We hold that the Indiana Constitution was not violated when, upon being convicted of Class A misdemeanor battery and sentenced to an executed term of incarceration, David Snyder was disenfranchised but only for the duration of his incarceration.
Notes
. "The General Assembly shall have power to deprive of the right of suffrage, and to render ineligible, any person convicted of an infamous crime.” Ind. Const, art. II, § 8.
. The Grand Jury Clause, which applies only to the federal government,
Hurtado v. California,
. Alternatively, the State argues that incarceration is an infamous punishment, regardless of place or duration, and that Snyder was convicted of an infamous crime because his conviction resulted in incarceration. The main weakness to sustaining this argument stems from the fact that the State has not suggested that the Constitution limits the General Assembly to disenfranchising an incarcerated person only for the duration of incarceration. The logical endpoint of the State's argument is that the General Assembly could forever disenfranchise anyone who is ever incarcerated upon conviction. Consider the following example: A 20-year-old is convicted of Class C misdemeanor illegal possession of alcohol by a minor, I.C. § 7.1-5-7-7, and the trial court sentences him or her to an executed term of incarceration (no matter how short), I.C. § 35-50-3-4 (person convicted of Class C misdemeanor can be sentenced to imprisonment for no morе than 60 days). And suppose that a second 20-year-old is convicted of the same crime arising from the same facts but the trial court, in its discretion, gives the second person a suspended sentence. There would be two persons convicted of the exact same minor offense but one would forever be disenfranchised while the other would not. This would be an absurd result, and we will not interpret the Constitution to lead to an absurd result unless it undoubtedly requires us to do so.
Compare Superior Constr. Co. v. Carr,
. Oudawry and civil death both were "a form of community retaliation against the criminal,” Collateral Consequences, supra, at 942, and were used "to punish those who committed particular crimes involving serious harm to the society and to compel wrongdoers to obey orders of the courts,” Itzkowitz & Oldak, supra, at 722 (footnote omitted). One who had been deemed an outlaw "was expelled from the community and completely deprived of his civil rights and society’s protection,” id., and the consequences included being denounced as "infamous,” being deprived of all rights, confiscation of all property, and exposure to injury or death, because anyone could kill an outlaw without impunity, id. at 722-23. See also Collateral Consequences, supra, at 942; Damaska, supra, at 350-51; H. Erie Richards, Is Outlawry Obsolete?. 18 L.Q. Rev. 297, 298-99 (1902).
. During the 1850 Constitutional Convention, three resolutions of inquiry were submitted and adopted requesting that the Committee on the Elective Franchise consider including a provision regarding disenfranchisement for infamous crimes. The first two came on October 15, 1850, eight days after the Convention was first assembled. Benjamin F. Brookbank, of Union County, submitted the following: "That the Committee on the Elective Franchise be requested to report a clause or section, prohibiting any idiot or insane person, or any person convicted of an infamous crime, the exercise of the elective franchise.” 1 Charles Kettlebor-ough, Constitution Making in Indiana 244 (reprinted ed.1971) (emphasis added); see also Journal of the Convention of the People of the State of Indiana, To Amend the Constitution 65 (1851) [hereinafter Convention Journal]. And James Lockhart, of the Posey and Vanderburgh districts, offered a similar resolution requesting that the committee report a provision providing, inter alia, "that in all elections every white male inhabitant over the age of twenty-one, having resided in this State one year next preceding any election, shall be entitled to vote at such election in the county where he resides, unless he shall have been convicted of some crime deemed infamous by law.” 1 Kettle-borough, supra, at 244-45 & n.18; see also Convention Journal, supra, at 65-66, 103-04.
The report of the Committee on the Elective Franchise and the Apportionment of Representation was submitted on October 31, 1850, and it recommended that article 13 be incorporated into the Constitution. Section 4 of article 13 provided that "[t]he General Assembly shall have power to exclude from electing, or being elected, any person convicted of any infamous crime.” Convention Journal, supra, at 171-72. This language was taken almost verbatim from Article VI, Section 4, of the Indiana Constitution of 1816. The Committee’s report was concurred in and the article was read a first time and passed to a second reading. Id. at 172.
On November 23, 1850, about three weeks after the first reading of article 13, Robert H. Milroy, of Carroll County, submitted yet a third resolution pertaining to suffrage and infamous crimes, which requested that the committee report on, inter alia, a provision "requiring the Legislature to pass laws excluding from the rights of suffrage all persons who have been, or may be, convicted of bribery, of larceny, or any infamous crime." Id. at 287; see also 1 Kettleborough, supra, at 249. Although this resolution was adopted as *775 a resolution of inquiry, the language of article 13 was not altered between the first and final reads. 2 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 1306 (1850).
During the second reading of article 13, on December 24, 1850, section 1 prompted vigorous debate, id. at 1295-1306, but several sections, including section 4, did not and were engrossed for a third reading without
comment, id. at 1306. On December 26, 1850, article 13 was passed and referred to the Committee on Revision, Arrangement, and Phraseology. Id. at 1312; Convention Journal, supra, at 532. Then, on February 5, 1851, Robert Dale Owen, of Posey County, submitted to the Convention a Report from the Committee on Revision, Arrangement, and Phraseology that contained the subsequently ratified and current version of Article II, § 8. Convention Journal, supra, at 908-13.
. To be sure, the Fifth Amendment was adopted long before the Indiana Constitution, but, prior to 1885, many federal courts had looked to the nature of the crime itself in determining whether indictment by a grand jury was required.
E.g., United States v. Yates,
. In England, treason was different from felony because the lands of a traitor were forfeited to the King, whereas the lands of a felon were forfeited to his overlord. 1 LaFave, supra, § 1.6(a) n. 1, at 48.
. The term
crimen falsi
is borrowed from Roman law,
Butler,
. Indiana evidence law also permits impeachment of witnesses with a prior conviction of a crime involving dishonesty оr false statement, Evid. R. 609(a), but the justification for doing so relates to witness credibility and we have not considered such crimes to be "infamous.”
Ashton,
. Unlike the crimes listed in the 1843 statute, the crimes listed in the 1824 statute might be considered infamous for purposes of the Infamous Crimes Clause. The statute listed treason, murder, rape, kidnapping, and wilful and corrupt perjury as infamous crimes, R.L. 1824, ch. 29, § 71, at 150, and subsequent versions of the statute simply added to this list, R.L. 1831, ch. 26, § 79, at 195 (adding arson); R.S. 1843, ch. 54, § 79, at 999 (adding robbery, burglary, and forgery). Thus, these crimes were deemed infamous by statute for the 26 years preceding the 1850 Convention. In other words, an entire generation of Hoosier voters had never known those crimes not to be infamous. But not all of them constitute infamous crimes when the purpose of the Infamous Crimes Clause is considered. See infra.
. To be sure, some state courts are permitted by their respective laws to issue purely advisory opinions.
See, e.g., In re Request of the Governor for an Advisory Opinion,