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Christian Smith-Socaris on October 1, 2009 - 11:14am
Last week the Indiana Court of Appeals struck down the photo identification requirement for voting that was upheld by the US Supreme Court in its Crawford decision last year. In doing so, the court ruled on the basis of equal protection as guaranteed by Indiana's state constitution, which is more extensive than federal law. The Indiana court follows Missouri, whose photo ID requirement was found unconstitutional under that state's constitution in 2006.
The Indiana Court of Appeals did not rule that requiring a photo ID to vote inherently violates equal protection, but they did find that the current exemptions to the ID requirement create classes of voters with different burdens and that those differences cannot be adequately justified by the state. Specifically, the exemptions from the ID requirement for those casting absentee ballots, or those living in a nursing home that is also a polling place, run afoul of the state constitutional mandate that “[t]he 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 regard to the exemption for those who cast absentee ballots, the court pointed to a case where the state's high court had previously allowed the inclusion of extra requirements for absentee ballots based on "inherent differences [that] make mailed-in ballots more susceptible to improper influences or fraud." Therefore, the court found that it was irrational for the state to create a rule placing less scrutiny on absentee voters than it does on polling-place voters. Similarly, the Missouri Supreme Court found that a photo ID requirement was not necessary to protect the state's interest in preventing voter fraud because there was no evidence at all that voter impersonation occurred in Missouri, the only form of fraud addressed by ID requirements. With regard to the exemption for residents of nursing homes that are also polling places, the court found that the law failed in its requirement to treat similarly situated individuals the same.
True to form, the Governor and Secretary of State were quick to disparage the ruling as "arrogant" and those who brought the case as "irresponsible." Both seem to believe that if the US Supreme Court has ruled on the federal constitutionality of a law, there is no place for the state courts to rule on the same law's constitutionality under their state Constitution. Given their high positions in state government, such a view is sad if not surprising.
Decision Appears to Mark Shift in Best Venue for Voting Restriction Challenges: Two important lessons come from state courts striking down voter ID laws on constitutional grounds. First, state courts are showing themselves more exploratory than the federal courts in assessing governments' justifications for voter ID laws. In both Indiana and the earlier Missouri case, the court found that the laws, or parts of them, were not narrowly tailored to achieving the governments' interests. The Supreme Court in Crawford was much more willing to accept the government's justifications even when they didn't appear to have any facts to point to (ie. relying on references to voter fraud from the 19th century to justify current ID requirements).
The other important lesson is that as the US Supreme Court becomes more conservative, especially in the context of voting rights, it will fall to state constitutional protections to preserve the right to vote from further encroachment. Even in conservative states, as the cases from Indiana and Missouri illustrate, the constitutions themselves, and the judicial interpretation of those constitutions, will possibly be a more fertile ground for challenges against voting restrictions than their federal counterparts. While the Indiana Supreme Court has yet to make a final ruling, signs are pointing to a shift of where voting rights will find their best protection as we move into the future.