Indiana Court Strikes Down Voter ID Law

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By JOHN SCHWARTZ, NYT

An Indiana law requiring voters to show identification, declared constitutional by the United States Supreme Court just last year, was struck down Thursday by a state appellate court.

The state court said the law violated the Indiana Constitution by not treating all voters equally.

The legislature passed the voter ID law in 2005, and it was challenged in federal court. The Supreme Court upheld it in April 2008, but that July the League of Women Voters brought a new suit in state court.

“The court here accepted a lot of the arguments that were rejected by the U.S. Supreme Court,” Prof. Richard L. Hasen of Loyola Law School in Los Angeles said of Thursday’s decision, “so it’s like a second bite of the apple.”

The major difference between the state court decision and the Supreme Court’s decision in Crawford v. Marion County Election Board is that the state court was interpreting the Indiana Constitution, while the Supreme Court interpreted the Constitution of the United States. Generally, state courts are given the last word in interpreting their own constitutions.

Indiana’s Equal Privileges and Immunities Clause is similar to the Equal Protection Clause of the United States Constitution. But in the ruling Thursday, a unanimous three-judge panel of the Indiana Court of Appeals found that the voter ID law violated the state’s equal protection guarantee because it did not require mail-in voters and residents of some nursing homes to produce state-approved identification.

Under Indiana law, the court said, it might be reasonable to regulate absentee balloting more stringently than in-person balloting. But the voter ID law does the opposite, the judges said, by imposing “a less stringent requirement for absentee voters than for those voting in person.”

Indiana officials ridiculed the decision and said it would be appealed to the State Supreme Court. At a news conference, Gov. Mitch Daniels, a second-term Republican, called the ruling “preposterous” and said that “there’s nothing in the Indiana Constitution that goes beyond what the federal Constitution provides here.”

“This decision will be a footnote to history, eventually,” Mr. Daniels said, predicting that it would be overturned.

But Daniel P. Tokaji, an associate professor at Moritz College of Law, at Ohio State University, said the Indiana Constitution “does indeed provide broader protection for voting rights” than the federal Constitution. Professor Tokaji suggested that the judges did not believe that the law, adopted by a Republican-controlled legislature, was really intended to reduce voter fraud.

Voter ID laws have been a contentious issue in state legislatures around the country. They are largely supported by Republican lawmakers and conservative groups, which say they are necessary to combat fraud.

Critics of such laws, including many Democratic legislators, say they are intended to reduce the participation of low-income voters, and argue that while fraudulent names on voter rolls in registration drives may not be uncommon, few instances of fraud in actual voting have been detected.

Professor Hasen, in Los Angeles, said Thursday’s decision and a similar 2006 case in Missouri suggested that the federal courts, once a bastion of voters’ rights, could be taking a back seat to more liberal state courts given the Supreme Court’s conservative posture.

Michael J. Pitts, an associate professor at the Indiana University School of Law, agreed. “The state courts are much more amenable to these kinds of lawsuits than the federal courts are,” Professor Pitts said, “and this is where these battles are going to be played out.”

http://www.nytimes.com/2009/09/18/us/18vot...tml?_r=1&hp