Snyder v. King, No. 94S00–1101–CQ–50.

• Docket Nº: No. 94S00–1101–CQ–50.
• Citation: 958 N.E.2d 764
• Case Date: December 15, 2011
• Court: Supreme Court of Indiana

958 N.E.2d 764

David R. SNYDER, Plaintiff,
v.
J. Bradley KING and Trent Deckard, in Their Official Capacities as Co–Directors of the Indiana Election Division; and Linda Silcott and Pam Brunette, Each in Their Official Capacities as Members of the St. Joseph County Voter Registration Board, Defendants.

No. 94S00–1101–CQ–50.

Supreme Court of Indiana.

Dec. 15, 2011.

[958 N.E.2d 768]

William R. Groth, Geoffrey S. Lohman, Indianapolis, IN, Attorneys for Plaintiff.

Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General of Indiana, Ashley Tatman Harwel, Heather Hagan McVeigh, Deputy Attorneys General, Indianapolis, IN, Attorneys for Defendants.

SULLIVAN, Justice.

Article 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 § 35–42–2–1(a)(1) (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 declaratory

[958 N.E.2d 769]

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 question 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, 941 N.E.2d 1043, 1043 (Ind.2011).

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 misdemeanor 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 under the Indiana Constitution. United States v. Brown, 235 F.Supp.2d 931, 935–36 (S.D.Ind.2002). Like Judge Tinder, we find that the state constitutional issue in this case is more complicated than suggested by the narrowly phrased question framed by the parties.

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.,

[958 N.E.2d 770]

Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (“The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”). That said, like all fundamental rights, the fundamental right to vote never has been considered absolute. Historically, Indiana, along with most other states, has deprived certain criminals of their civil and political rights, including the right to vote. See Part I–B, infra.

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, 217 Ind. 534, 541, 29 N.E.2d 588, 588 (1940) (Shake, J.). Although it contains a categorical limitation, the Infamous Crimes Clause does not contain a durational limitation. Consequently, if misdemeanor battery is an “infamous crime,” then it is only by legislative grace that Snyder's right to vote was restored when he was released from incarceration. To be sure, the power to disenfranchise permanently persons convicted of any crimes even though they have completed their sentences might be limited by other provisions of the Indiana Constitution, such as the Proportionality Clause of Article I, § 16, and it may also be limited by the Equal Protection Clause, cf. Richardson v. Ramirez, 418 U.S. 24, 43–56, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (holding that Section 2 of the Fourteenth Amendment permits states to disenfranchise convicted felons who have completed their sentences). It is, however, unnecessary to consider here these putative limitations because Snyder was disenfranchised by law only during his incarceration.

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, 193 Ind. 551, 139 N.E. 360 (1923) (restraining freedom of elections); Baum v. State, 157 Ind. 282, 61 N.E. 672 (1901) (vote selling); Crum v. State, 148 Ind. 401, 47 N.E. 833 (1897) (felony larceny); Wilson v. Montgomery County Election Bd., 642 N.E.2d 258 (Ind.Ct.App.1994) (making a pipe bomb), trans. denied; Taylor v. State Election Bd., 616 N.E.2d 380 (Ind.Ct.App.1993) (Class D felony criminal recklessness). These decisions applied the standard used to determine whether a crime is infamous for purposes of the Grand Jury Clause of the Fifth Amendment,² which requires presentment or indictment by a grand jury if a conviction might subject the accused to an infamous punishment, such as imprisonment in a prison or penitentiary.

[958 N.E.2d 771]

Mackin v. United States, 117 U.S. 348, 350–54, 6 S.Ct. 777, 29 L.Ed. 909 (1886); Ex Parte Wilson, 114 U.S. 417, 422–29, 5 S.Ct. 935, 29 L.Ed. 89 (1885); see Crampton, 193 Ind. at 552, 556–57, 139 N.E. at 361–63 (councilman convicted of conspiring to restrain freedom of federal elections and sentenced to one year and one day in a federal penitentiary); Baum, 157 Ind. at 283, 285–86, 61 N.E. at 673–74 (defendant convicted of vote selling punished with loss of civil and political...