League Of Women Voters Of Ind. Inc v. Rokita

• Decision Date: 30 June 2010
• Docket Number: No. 49S02-1001-CV-50.,49S02-1001-CV-50.
• Citation: 929 N.E.2d 758
• Parties: LEAGUE OF WOMEN VOTERS OF INDIANA, INC., and 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).
• Court: Indiana Supreme Court

929 N.E.2d 758

LEAGUE OF WOMEN VOTERS OF INDIANA, INC., and 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.

William R. Groth, Fillenwarth Dennerline Groth & Towe, LLP, Karen Celestino-Horseman, Thomas N. Austin, Bruce G. Jones, Austin & Jones, P.C., Indianapolis, IN, Attorneys for Appellants.

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.

Andrew Mallon, Drewry Simmons Vornehm, LLP, Indianapolis, IN, Craig A. Cowie, Carrie F. Apfel, Daniel I. Weiner, James C. Cox, Jenner & Block LLP, Washington, DC, for Amicus Curiae Brief of Professors Madison, Levinson, and Etcheson in Support of Appellants.

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. Nu~no and Gabriel Ramon Sanchez in Opposition to Defendant's Petition to Transfer.

Daniel B. Kohrman, AARP Foundation Litigation, Joshua D. Weinberg, Hogan & Hartson 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.

On Transfer from the Indiana Court of Appeals, No. 49A02-0901-CV-40

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 Article 2, Section 2, and Article 1, Section 23 of the Indiana Constitution. The trial court granted the defendant's motion to dismiss, concluding that the Voter ID Law did not violate either constitutional provision. The Court of Appeals reversed. League of Women Voters of Ind., Inc. v. Rokita, 915 N.E.2d 151 (Ind.Ct.App.2009). We granted transfer, thereby automatically vacating the opinion of the Court of Appeals and accepting jurisdiction over the appeal, pursuant to Indiana Appellate Rule 58(A). Determining that this case presents only facial challenges to the constitutionality of the Voter ID Law, we now affirm the trial court's dismissal of the complaint, but without prejudice to future as-applied challenges by any voter unlawfully prevented from exercising the right to vote.

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 Voters have long been required to identify themselves at the polls by announcing and signing their names. Neither of the constitutional pro visions the plaintiffs invoke prevents the legislature from promulgating a new way for voters to identify themselves. It is within the power of the legislature to require voters to identify themselves at the polls using a photo ID. The plaintiffs' claim for relief cannot be granted and dismissal was appropriate. No individual voter has alleged that the Voter ID Law has prevented him or her from voting or inhibited his or her ability to vote in any way.² Our decision today does not prevent any such voter from challenging the Law in the future.

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 42 U.S.C. § 1971, and Article 2, Sections 1 and 2 of the Indiana Constitution. The District Court rejected the plaintiffs' challenges and upheld the law, and its judgment was upheld on appeal. Ind. Democratic Party v. Rokita, 458 F.Supp.2d 775 (S.D.Ind.2006) aff'd sub nom. Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir.2007) aff'd, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008).

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 may 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 Article 2, Section 2, and Article 1, Section 23 of the Indiana Constitution. The plaintiffs seek a general judicial nullification of the Indiana Voter ID Law. This case presents facial but not as-applied constitutional challenges. The amended complaint does not seek individual relief under any claim that the Voter ID Law is unconstitutional as applied to either of the plaintiffs but rather seeks only a general declaration that “the Indiana Photo ID Law violates Art. 2, § 2 and Art. 1, § 23 of the Indiana Constitution.” Appellants' App'x at 16. Among their assertions at trial and on appeal, the plaintiffs-appellants recite a claim that the Voter ID Law is unconstitutional as applied to some persons but make no claim that the Law is unconstitutional as applied to either of the plaintiffs-appellants, nor do they seek individualized exemptions from the Law's requirements. See [League of Women Voters of Indiana, Inc.] Response in Opposition to Defendant's Motion to Dismiss, Appellants' Supp. App'x at 35-37; Appellants' Br. at 43-45. We therefore treat this case as alleging only claims of facial unconstitutionality and do not address the availability of claims alleging that the Law is unconstitutional as applied.

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 Article 2, Section 2; ⁴

(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

Part I. Entitlement to Vote-Article 2, Section 2

Emphasizing that voting is a fundamental right of all voters who meet the enumerated qualifications in Article 2, Section 2 of the Indiana Constitution, the plaintiffs contend that the only permissible voting qualifications are those explicitly established in Article 2 and that the Voter ID Law is unconstitutional because (a) it imposes a new substantive qualification on the right to vote; (b) it is not a registration law authorized by Article 2, Section 14(c) of the Indiana Constitution; and (c) it is not uniformly applicable to all voters. With respect to these arguments, the following provisions of the Indiana Constitution are relevant:

Article 2

Suffrage and Election

Section 1. All

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