Supreme Court decision unlikely to end voter-ID fight: More cases arise to challenge strict state statute

June 30, 2008

Two months have passed since the Supreme Court of the United States upheld Indiana's voter identification law requiring photo ID for anyone casting a ballot in-person.

Potential sequels are already in the litigation works, though it's debatable whether they are actually considered "sequels."

While plaintiffs separately contend that the Supreme Court case, William Crawford, et al. v. Marion County Election Board, either doesn't apply or endanger their claims, the pair of suits signify the first Indiana cases to come since the April 28 decision.

In its ruling, justices upheld the 2005-enacted state law considered the country's most strict voter ID statute. The conclusion reached by the court as a whole was that the law may be unconstitutional as applied to a small number of voters who must incur costs in order to obtain the ID, but because that case had no such voters as plaintiffs, it failed to reach that claim.

That ruling rejected the facial challenge, but left the door open for as-applied challenges in federal court and cases involving state constitutional claims.

"[The Crawford case] took a pass on the [federal] constitutionality but left it completely open for state constitution challenges," said Indianapolis attorney William Groth, with Fillenwarth Dennerline Groth & Towe, who was an attorney in Crawford and is now co-counsel on a state suit filed June 20 by the League of Women Voters of Indiana. "So, that [decision] only minimally factors in. It discusses the law, how it operates, and sets the legal landscape for us, but doesn't have any impact."

Those Indiana plaintiffs or attorneys say they've been following similar issues nationally, but everyone is operating independently and just trying to distinguish their cases from the recent ruling. The attorneys in each of the Hoosier cases say their suits are "uniquely Indiana" or "flipping Crawford on its head."

'Uniquely Indiana'

Filed in Marion Superior Court against Indiana Secretary of State Todd Rokita, the League of Women Voters argues it has the standing to sue on behalf of its 1,100 members because the state statute burdens those registered voters and would cause the league to have to spend "precious resources" assisting voters without the required ID.

Co-counsel in this case is Austin & Jones attorney Karen Celestino-Horseman, a former Indianapolis City-County Council member and former attorney with the Democratic Party.

Specifically, the suit says the 2005- passed Indiana Voter ID law violates Article 2, Section 2, of the state constitution that says citizens only need to meet the age, citizenship, and residency requirements in order to cast a vote in-person. Any change the legislature might make must come through a constitutional amendment, not a statute, which didn't happen here, the suit says.

The suit doesn't name any specific plaintiffs but says the law prevents an "indeterminate number of citizens in Marion County and throughout the State from casting a vote that counts."

It does mention two specific election examples where individuals were restricted from voting because of the law. One came during the 2007 municipal election when at least 34 voters arrived to vote without ID and were given provisional ballots-only two produced that ID later to have their votes count. The second example is from the May 2008 primary when 12 elderly St. Joseph County nuns were not allowed to cast provisional ballots because they didn't have the ID.

In Crawford, the League of Women Voters of Indiana, Indianapolis, and the U.S. filed a brief that cited specific examples of voters by name who'd been burdened by the photo-ID requirement, including some turned away from the polls. Groth said those may end up being disclosed in discovery but the group was reluctant to do that now because this suit doesn't turn on the nature or severity of the burden it imposes.

"It's a strict question of constitutional interpretation," he said. "Our argument will turn on whether the voter-ID law imposes a new substantive requirement, or whether it's merely regulating the mechanics of the voting process. It's a subtle and nuanced distinction, but our Indiana caselaw supports that this must be a constitutional amendment."

Groth said this suit presents an issue of first impression that he expects will go to the Indiana Supreme Court because he doesn't know of any Hoosier caselaw specifically addressing both the voter-ID law and "a new substantive qualification" on voting rights relating to Article 2, Sec. 2.

Caselaw cited in the suit includes decisions holding that constitutional section is mandatory and doesn't allow change without an amendment.

The suit requests a speedy hearing for a declaratory relief in time for the Nov. 4 general election, though Groth expects the controversial issues involved here will require this case to be appealed. "It's likely that given the novelty and importance of these issues, the trial court won't be the final word," he said.

Case for the '99 percent'

A point in the League of Women voters suit is what Indianapolis attorney Robbin Stewart argues is a main thrust of his lawsuit, filed well before the May primary in state court and since removed to federal court; he hasn't gotten a resolution and the primary has come and gone.

In the LWV suit, the organization points out that many of its members do possess a driver's license but philosophically object to "being compelled to produce at the polls the restrictive form of identification."

Stewart said he's coming at his suit as "one of the 99 percent who do have the required identification." That's what makes this different from the Crawford case, which came at the issue from the perspective of those burdened voters without ID, he said.

"Yes, I do see this as a sequel," Stewart said, noting that this is an as-applied challenge for which the Crawford court specifically left the door open. "I've been turned away from voting, and that's not right."

Stewart filed a state suit in Marion County on April 18. He made similar claims as the LWV did, but the defendants-Marion County, Clerk Beth White, and three unnamed "Jane Does" who were the election workers who prevented his voting-moved to remove the case to the Southern District of Indiana, despite Stewart's objections. The Indianapolis federal judge also dismissed the claims against the election workers, though allowing him to re-file if he obtains names.

Regarding his lawsuit, Stewart said he has been turned away-not because he doesn't have a valid, state-issued driver's license, but because he philosophically opposes being forced to show it to vote. It's different when going to an airport or driving a car, because those aren't constitutional rights, he said.

Though he has an ID, Stewart pointed out he has been burdened by this law when he didn't have a driver's license and struggled to get one in the first year the Indiana statute went into effect in 2005.

He'd misplaced the license, and said he had to pay to travel to Delaware to get a birth certificate copy from his mother. He then had an issue with the Indiana Bureau of Motor Vehicles because he'd legally changed his name when he was young and the records didn't match, and the branch wouldn't accept documentation about the name change as confirmation.

"It's a catch-22 and is more hassle than reasonable," he said, adding the issue was resolved about a year later. "I vote because it's important to me, but some would rather stay home than go through this."
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