ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE ATTORNEYS FOR AMICI CURIAE

William R. Groth Gregory F. Zoeller [see attachment]

Fillenwarth Dennerline Groth & Towe, LLP Attorney General of Indiana

Indianapolis, Indiana

 Thomas M. Fisher

Karen Celestino-Horseman Solicitor General

Thomas N. Austin

Bruce G. Jones Heather L. Hagan

Austin & Jones, P.C. Deputy Attorney General

Indianapolis, Indiana

 Ashley E. Tatman

 Deputy Attorney General

 Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 49S02-1001-CV-50

_________________________________

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).

_________________________________

Appeal from the Marion Superior Court, No. 49D13-0806-PL-27627

The Honorable S.K. Reid, Judge

_________________________________

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

_________________________________

June 30, 2010

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 defen-
2

dant'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 provisions 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).

 

1

"Plaintiffs . . . pray for the following relief . . . [a] declaration by this Court that the Indiana Photo ID Law 

violates Art. 2, §2 and Art. 1, §23 of the Indiana Constitution." Amended Complaint for Declaratory Judgment 

("Complaint") at 8–9; Appellants' App'x at 15–16. 

2 While an admittedly different type of claim, we note that when Indiana Democrats challenged the 1980 

legislative apportionment plan in two lawsuits, there were seven individual plaintiffs in one lawsuit and eight in the 

other claiming impingement by the challenged statute. See Bandemer v. Davis, 603 F. Supp. 1479, 1482 (S.D. Ind. 

1984), rev’d, Davis v. Bandemer, 478 U.S. 109, 106 S. Ct. 2797, 92 L. Ed. 2d 85 (1986).
3

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-

 

3 The plaintiffs' complaint makes the following allegations: (1) the Voter ID Law prevented or discouraged 

an indeterminate number of citizens from voting; (2) the votes of 32 persons who did not produce the requisite photo ID were not counted in the 2007 municipal election in Marion County; (3) the votes of 12 nuns who did not produce the requisite photo ID were not counted in the 2008 primary election in St. Joseph County; (4) the Law has 

prevented an indeterminate number of citizens from voting whose requisite photo ID was lost or stolen or who forgot to bring their requisite photo ID to the polls; and (5) the Law has discouraged or dissuaded an indeterminate 

number of citizens from voting because of its "extra-constitutional requirements." Complaint ¶¶ 17–20; Appellants' 

App'x at 13–14. None of these allegations creates any basis for a declaration that the State may not require any 

voters to identify themselves at the polls using photo ID. Some of these allegations, if substantiated, may entitle 

specific voters to more tailored relief, but none has been sought in the plaintiffs' complaint.
4

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:

 

4 Complaint ¶¶ 12–16; Appellants' App'x at 11–13.

5 Complaint ¶¶ 23–25; Appellants' App'x at 14–15.

6 Complaint ¶ 26; Appellants' App'x at 15.
5

Article 2

Suffrage and Election

Section 1. All elections shall be free and equal.

Section 2. 

 (a) A citizen of the United States, who is at least eighteen (18) years of age and who has been a 

resident of a precinct thirty (30) days immediately preceding an election may vote in that precinct 

at the election.

 (b) A citizen may not be disenfranchised under subsection (a), if the citizen is entitled to vote in 

a precinct under subsection (c) or federal law.

 (c) The General Assembly may provide that a citizen who ceases to be a resident of a precinct 

before an election may vote in a precinct where the citizen previously resided if, on the date of the 

election, the citizen's name appears on the registration rolls for the precinct. 

* * * 

Section 14.

* * * 

 (c) The General Assembly shall provide for the registration of all persons entitled to vote.

A.

The plaintiffs acknowledge that the Indiana General Assembly has the power to regulate the administration of elections but argue that the Voter ID Law is not merely a procedural regulation but rather 

"adds a new substantive voting qualification not authorized by the Indiana Constitution." Appellants' Br.

at 18. This contention was presented and rejected in the federal litigation. Judge Barker, whose judgment 

was subsequently affirmed by the Seventh Circuit and by the United States Supreme Court in a 6-3 vote, 

explained: 

The fact that Plaintiffs prefer alternative procedures to the photo identification does not create a 

Constitutional violation in requiring the latter. Nor is a Constitutional violation committed every 

time the General Assembly enacts a new voting regulation since, as we have previously noted, under Indiana law "the Legislature has power to determine what regulations shall be complied with 

by a qualified voter in order that his ballot may be counted, so long as what it requires is not so 

grossly unreasonable that compliance therewith is practically impossible." Simmons v. Byrd, 192 

Ind. 274, 136 N.E. 14, 17–18 (Ind. 1922). Accordingly, Plaintiffs have failed to demonstrate that 

[the Voter ID Law] violates Indiana Constitution Article 2, section 2.
6

Ind. Democratic Party, 458 F. Supp. 2d at 843. A federal court's interpretation of Indiana law is not binding on Indiana state courts. See Evan v. Poe & Assocs., 873 N.E.2d 92, 103 (Ind. Ct. App. 2007), trans. 

not sought; Burk v. Heritage Food Serv. Equip., Inc., 737 N.E.2d 803, 812 n.1 (Ind. Ct. App. 2000), trans. 

not sought. In addition, while the doctrine of collateral estoppel precludes parties "from raising issues in 

state court that have been finally determined as to the same parties in previous federal actions," Endres v. 

Ind. State Police, 809 N.E.2d 320, 321 (Ind. 2004), we do not have the same parties in the present litigation as in the federal litigation. Indiana Secretary of State Todd Rokita was and is a defendant in both 

cases, but the plaintiffs here were not parties in the federal lawsuit. 

To support their claim that the Voter ID Law created prohibited voter qualifications rather than

permissible election regulations, the plaintiffs argue that the legislature may not alter the voting qualifications established by the Indiana Constitution and that the Voter ID Law is not a permissible procedural 

regulation but instead is a statute that imposes a new property qualification and arbitrary, burdensome, 

and exclusionary conditions on the right to vote of constitutionally eligible voters.

The plaintiffs rely primarily upon the early case of Morris v. Powell, 125 Ind. 281, 25 N.E. 221 

(1890). At the time Morris was decided, the Indiana legislature had not yet enacted a general voter registration law, although authorized in 1881 to do so by an amendment to Article 2, Section 2. A statute was 

enacted in 1889 that (a) required certain Indiana residents absent from Indiana for six months or more or 

who had not resided in one county for six months before an election to register in their home county three 

months before the election and to present a certified copy of such registration at the time of voting, and

(b) required a voter absent from Indiana for six months or more on state or federal government business to 

produce when voting a certificate from the county auditor verifying that the voter's name had continuously "been upon the tax duplicate of said county for the purpose of taxation, during his absence from the 

State, and that he is still a taxpayer in said county." Id. at 283, 25 N.E. at 222. This latter requirement 

operated to prevent voting by such persons absent on government business if they did not own taxable 

property in the county and were more than fifty years old.

7

 Morris was an action brought against a county 

 

7

This is explained in Morris as follows:

None of the names of voters except able-bodied men, between the ages of twenty-one and 

fifty years, and persons owning taxable property in the county, properly appear upon the 

tax duplicate, and are not taxpayers in the county. So that a voter over fifty years of age, 

being absent on business of the State or United states, and owning no taxable property in 
7

auditor to enjoin the payment for books furnished for registering votes under provisions of the 1889 statute. The Morris Court identified the question presented as whether the legislature can impose the challenged obligations "on the class of voters therein specified, and to another class add a qualification not 

required by the Constitution to entitle them to vote." Id. at 286, 25 N.E. at 223. The Court declared that 

the legislature lacked the authority to require any voter to own taxable property within the county and

held that the challenged statute, in requiring a special registration of voters who may be absent from Indiana for six months, was "both unreasonable and not impartial." Id. at 294, 25 N.E. at 225. It concluded:

The authorities universally hold that registration laws must be impartial, uniform and reasonable, 

giving to all who have a right to vote a fair and reasonable opportunity to exercise such right. 

 The Constitution not only confers upon the General Assembly the power to make illegal voting 

an impossibility by a proper system of registration, but it makes it the imperative duty of that body 

to exercise that power. The imposition of unauthorized burdens and qualifications not authorized 

by the Constitution upon a part of the citizens of the State is not an exercise of that power, and 

while we would regret to declare void any law having for its object the purity of elections, we can 

not so far forget our duty as to uphold a law so plainly in conflict with the fundamental law of the 

State as the section of the law under consideration.

Id. at 296, 25 N.E. at 226. The plaintiffs argue that the government identification card with an expiration 

date and a photograph, required by the Voter ID Law, is equivalent to the county auditor certificate found 

to be unconstitutional in Morris. Such government identification, they assert, should be considered an 

impermissible statutory "qualification" to vote, and thus violative of Section 2, "because it imposes an unnecessary and arbitrary burden on some voters." Appellants' Br. at 21–22.

Defending the Voter ID Law, the defendant counters that the Voter ID Law "is merely a regulation 

of election procedures designed to ensure fair elections, not an alteration of voter qualifications." Appellee's Br. at 13. He points to Article 2, Section 1 of the Indiana Constitution, which provides that all elections "shall be free and equal," and argues that the General Assembly has the power to protect the rights 

of citizens to "a fair and reliable electoral system in which their individual votes are not diluted by the 

fraudulently cast votes of others." Id. He contends that the requirements of the Voter ID Law are valid 

and reasonable means of enforcing the qualifications established in Article 2, Section 2. The defendant

stresses that in Morris the statutory provisions were not invalidated because they required some voters to 

 

the county, is not a taxpayer in the county, and he could not procure such a certificate from 

the county auditor, and on voting, or attempting to vote, he would by this section be guilty 

of a felony.

Morris, 125 Ind. at 287, 25 N.E. at 223.
8

produce a document proving they complied with the valid existing constitutional qualifications of Article 

2, Section 2. Rather, the provisions were invalidated in Morris "because they required documentation of 

some other extra-constitutional qualification to vote, i.e., 90-day residency and property ownership." Id.

at 23. Citing Simmons v. Byrd, 192 Ind. 274, 136 N.E. 14 (1922), the defendant asserts that Article 2, 

Section 2 does not provide "an exhaustive list of possible impediments to voting." Appellee's Br. at 15.

Between 1881 and 1921, Article 2, Section 2 set forth the qualifications for voting, followed by 

the phrase "if he shall have been duly registered according to law." Ind. Const. art. 2, § 2 (1881). Another provision added in 1881 expressly required the Indiana General Assembly to "provide for the registration of all persons entitled to vote." Ind. Const. art. 2, § 14 (1881). In 1921, the voter qualifications enumerated in Section 2 of Article 2 were altered (in part to include women), but the revision omitted the 

former concluding condition "if he shall have been duly registered according to law."8Ind. Const. art. 2, 

§ 2 (1921).

In Simmons, the plaintiff challenged various statutes that required voters to register before taking 

part in elections, his claim based largely on the 1921 amendment's elimination of the registration clause

from Section 2 of Article 2. The principal claim in Simmons was that, without the registration clause, 

Section 2 was violated by the statutory language that prohibited persons from voting unless registered and 

subjected such unregistered voters to be challenged and their votes excluded. In Simmons, this Court 

upheld the registration provisions, emphasizing that the Indiana Constitution requires that "[a]ll elections 

shall be free and equal." Ind. Const. art. 2, § 1. It quoted with express approval from an opinion of the 

Illinois Supreme Court, stating:

If there is a provision, that all persons, possessing certain qualifications, shall be entitled to vote, 

there is also a provision, that all elections shall be free and equal. It is as much the duty of the legislature to pass measures for carrying the latter as for carrying the former provision, into effect. . . . 

When the ballot-box becomes the receptacle of fraudulent votes, the freedom and equality of elections are destroyed.

Simmons, 192 Ind. at 285, 136 N.E. at 17–18 (quoting People v. Hoffman, 116 Ill. 587, 616, 5 N.E. 596, 

611 (1886)). Simmons also noted that, despite the omission of the registration clause from Section 2 of 

 

8

Further amendments in 1976, 1984, and 1998, resulting in the present language of Section 2, most significantly operated to lower the age qualification from 21 to 18 and to reduce the minimum residency requirement from 

six months to thirty days. 
9

Article 2, a separate voter registration provision was present in the then-existing language of Section 14 of 

Article 2, which "authorizes and commands . . . for the registration of all persons entitled to vote." 192 

Ind. at 282, 136 N.E. at 16 (internal quotation marks omitted). Simmons did not find Morris to be an impediment to the legislature's authority to regulate elections. Upholding a statutory requirement for voters 

to register twenty-nine days before the election, this Court forcefully concluded:

Being charged by the constitution with the duty to "provide for the registration of all persons entitled to vote," and to enact such laws governing registration and the holding of elections that "all 

elections shall be free and equal," the legislature has power to determine what regulations shall be 

complied with by a qualified voter in order that his ballot may be counted, so long as what it requires is not so grossly unreasonable that compliance therewith is practically impossible. . . . 

[S]ince the legislature has power to provide by law for the registration of all voters, it has power to 

exclude from the privilege of voting those persons who refuse or neglect to register a reasonable 

number of days before the election. 

Id. at 286, 136 N.E. at 18. 

As declared in Morris and emphatically reasserted in Simmons, "the General Assembly has the 

power to enact a law providing for a uniform system of registration of all voters" and "the duty . . . to 

enact a law providing a reasonable, uniform and impartial system for the registration of all voters." Morris, 125 Ind. at 286, 25 N.E. at 222–23, quoted with approval in Simmons, 192 Ind. at 282, 136 N.E. at 16. 

As to its language suggesting consideration of election regulation legislation as analogous to voter qualifications, Morris must be viewed in its historical context. The Court in Morris was confronted with the 

legislature's failure to enact a general voter registration law despite constitutional authorization and then 

its adoption of an incomplete and selective registration system, one that operated to disqualify certain voters for lack of property ownership. We find the essential holding from Morris and Simmons is that reasonableness and uniformity are required in the regulation of elections by means of a system of registration. We do not read Simmons as granting a blanket authorization for the legislature to enact any voting 

regulation it sees fit.

The plaintiffs are correct that the legislature may not by statutory enactment add a substantive qualification to the right to vote assured by Article 2. In our view, however, the Voter ID Law's requirement 

that an in-person voter present a government-issued photo identification card containing an expiration 

date is merely regulatory in nature. The voter qualifications established in Section 2 of Article 2 relate to 

citizenship, age, and residency. Requiring qualified voters to present a specified form of identification is 
10

not in the nature of such a personal, individual characteristic or attribute but rather functions merely as an 

election regulation to verify the voter's identity. When the United States Supreme Court reviewed the Indiana Voter ID Law, the lead opinion, written by Justice Stevens on behalf of himself, Chief Justice Roberts, and Justice Kennedy, pointed out that Congress "believes that photo identification is one effective 

method of establishing a voter's qualification to vote and that the integrity of elections is enhanced 

through improved technology." Crawford, 553 U.S. at 193, 128 S. Ct. at 1618, 170 L. Ed. 2d at 585.9 

Justice Stevens quoted with approval from the report issued by the Commission on Federal Election 

Reform chaired by former President Jimmy Carter and former Secretary of State James A. Baker, III, 

which emphasized: "The electoral system cannot inspire public confidence if no safeguards exist to deter 

or detect fraud or to confirm the identity of voters. Photo [identification cards] currently are needed to 

board a plane, enter federal buildings, and cash a check. Voting is equally important." Id. at 194, 128 S. 

Ct. at 1618, 170 L. Ed. 2d at 585–86 (quoting Building Confidence in U.S. Elections § 2.5 (Sept. 2005), 

App. 136–137 (Carter-Baker Report)).

We conclude that the Indiana Voter ID Law's photo identification card requirements are in the nature of an election regulation and, as such, must satisfy Indiana's requirements of uniformity and reasonableness. But the requirements of the Voter ID Law are not, as the plaintiffs urge, unconstitutional as additional substantive voter qualifications.

B.

As an additional argument claiming that the Voter ID Law violates Article 2, Section 2, the plaintiffs assert that the law is not uniformly applicable to all voters. We augment this argument to also consider both the requirements uniformity and reasonableness. 

The plaintiffs contend that the Voter ID Law is not universally applicable to all voters because it 

does not apply to voters who mail in an absentee ballot or those who live in a state licensed care facility 

housing the voter's polling place. They argue that, to obtain the required Indiana photograph identifica-

 

9

 In the United States Supreme Court, Justice Stevens wrote the lead opinion, in which Chief Justice Roberts and Justice Kennedy concurred; Justice Scalia wrote a concurring opinion, joined by Justices Thomas and Alito; Justice Souter wrote a dissenting opinion, joined by Justice Ginsburg; and Justice Breyer wrote a separate dissent.
11

tion card, "a would-be voter must present the original or certified copy of her birth certificate, a certificate 

of naturalization, a U.S. Veteran's photo identification, a U.S. military photo identification, or a U.S. 

passport," many of which involve significant fees and/or hardship to obtain. Appellants' Br. at 22–23. 

The plaintiffs assert that these requirements make the Voter ID Law "burdensome, exclusionary and disqualifying as to some voters," particularly non-drivers and college students. Id. at 23.

As to uniformity, we acknowledge that the Voter ID Law creates exceptions to its general requirement for government-issued photo identification as to mail-in absentee voters and for voters living in 

state licensed care facilities which house the voter's polling place. These exceptions, however, do not undermine the uniformity of the photo identification requirement for in-person voting. They apply only 

with respect to special alternative voting accommodations in which the photo identification requirement 

would be impracticable, unnecessary, or of doubtful utility. Such special exceptions no more create a fatal lack of uniformity in the Voter ID Law than do the statutory provisions authorizing mail-in absentee 

voting, early voting, and other accommodations that allow voting apart from in-person voting at regular 

polling places on election day invalidate Indiana's general election scheme for non-uniformity. They 

represent specific legislative regulations associated with additional accommodations extended by the legislature to provide alternatives for voters for whom in-person voting on election day would be difficult or 

impossible.

We are not persuaded that the photo identification requirements in the Voter ID Law are so unreasonable as to violate Article 2. The Law authorizes and provides guidelines to the Indiana Bureau of Motor Vehicles for the issuance of non-driver voter identification cards. Ind. Code §§ 9-24-16-1, 9-24-16-2, 

9-24-16-3.5. The Bureau must issue an identification card to an individual who applies for a card, is a 

resident of Indiana, and presents documentary evidence to verify the individual's name, date of birth, address, social security number, and legal presence in the United States. See Ind. Code §§ 9-24-16-1, 9-24-

16-2, 9-24-16-3.5. Under regulations promulgated by the Bureau, an individual must provide documents 

to establish (1) identity, which includes full legal name and date of birth; (2) lawful status in the United 

States, which can be shown by a birth certificate, passport, or one of several other documents; (3) residency in Indiana; and (4) a social security number. 140 Ind. Admin. Code 7-1.1-3. To assist individuals in 

the process and to prevent the necessity for return trips to a Bureau branch, the Bureau has created an online list of the documents that can be used. The Bureau also has a customer service telephone line to as-
12

sist people in retrieving the necessary documents. Furthermore, the Bureau may grant exceptions or use 

other verifiable documentation if an applicant is reasonably unable to gather the necessary documents. 

140 I.A.C. 7-1.1-3(e). Finally, the Bureau has established a system by which it can issue an interim identification card to allow an individual to vote while the Bureau conducts its verification of the application 

for a permanent identification card. 140 I.A.C. 7-1.2-1. 

We share the assessment expressed by Justice Stevens that "we cannot conclude that the [Indiana 

Voter ID] statute imposes 'excessively burdensome requirements' on any class of voters" and that, considering the statute's broad application to all Indiana voters, "it 'imposes only a limited burden on voters' 

rights.'" Crawford, 553 U.S. at 202–03, 128 S. Ct. at 1623, 170 L. Ed. 2d at 590–91 (internal citations 

omitted).10 The burdens occasioned by the Voter ID Law serve numerous substantial interests relating to 

the use of technology to modernize and to protect the integrity and reliability of the electoral process. We

find that the requirements of the Indiana Voter ID Law, while enhancing the procedural burdens associated with the voting process, are not sufficiently unreasonable. 

Because it is not alleged in the present case, we need not determine whether an as-applied challenge may be maintained if a claim were presented and proven that reasonable government assistance was 

not actually available to adequately relieve either the cost or hardship of obtaining photo ID.

We therefore reject the plaintiffs' claims of facial unconstitutionality under Article 2 of the Indiana 

Constitution. 

 

10 One amicus calls to our attention an academic study showing that in Indiana’s 92 counties in the November 2008 general election, 1,039 provisional ballots were cast because a voter lacked the required photo identification. Of those 1,039 votes, 137 subsequently qualified and were counted after the election. That is, 902 provisional 

ballots cast because a voter lacked the requisite photo ID were not counted. Br. of Amici Curiae Lonna Rae Atkeson et al. [political scientists who study elections] at 10 (citing Michael J. Pitts & Matthew D. Neumann, Documenting Disenfranchisement: Voter Identification at Indiana’s 2008 General Election, J.L. & Pol. (forthcoming 

2010)). The amicus brief does not indicate the extent to which, if any, the study presents information on why these 

voters lacked photo ID—whether they had been unable to obtain it or simply forgot to bring it to the polls or were 

ineligible to vote. And, of course, this number does not reflect any voters who simply did not come to the polls 

because they did not have the requisite photo ID. By way of reference, in the November 2008 general election, of

the 4,514,759 registered voters, 2,805,986 (62%) voted, 2,143,813 in person and 662,443 by absentee ballot. Indiana Secretary of State Website: http://www.in.gov/sos/elections/2008_Municipal_Registration_and_Turnout.pdf

(last visited June 29, 2010).
13

Part II. Equal Privileges and Immunities – Article 1, Section 23 

The plaintiffs contend that the Voter ID Law violates the Equal Privileges and Immunities Clause 

of the Indiana Constitution: "The 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." Ind. Const.

art. 1, § 23.11 The plaintiffs' complaint alleges two examples of unequal treatment claimed as violations 

of Section 23: (1) requiring photo identification of in-person but not mail-in absentee voters, and (2) exempting from the photo identification requirement voters residing in state licensed care facilities at which 

a precinct polling place is located.

12

 

In Collins v. Day, 644 N.E.2d 72 (Ind. 1994), this Court engaged in a comprehensive review of the 

history and purposes animating the adoption of Section 23 as part of Indiana's 1851 Constitution and of 

the subsequent case law, particularly our early decisions that were contemporaneous with its adoption and 

which were "accorded strong and superseding precedential value." Id. at 77. Synthesizing history, text, 

and subsequent case law, we adopted a superseding analytical formulation that, when statutes grant unequal privileges or immunities to differing persons or classes of persons, the Equal Privileges and Immunities Clause imposes two requirements: "First, the disparate treatment accorded by the legislation must be 

reasonably related to inherent characteristics [that] distinguish the unequally treated classes. Second, the 

preferential treatment must be uniformly applicable and equally available to all persons similarly situated." Id. at 80. In addition, "in determining whether a statute complies with or violates Section 23, 

courts must exercise substantial deference to legislative discretion." Id. 

The plaintiffs' assertion that the Voter ID Law violates Section 23 is based on three principal con-

 

11 The history associated with Section 23 and the value of equality for Indiana citizens is helpfully chronicled and discussed in the Brief of Professors Madison, Levinson, and Etcheson as Amici Curiae in Support of 

Appellants.

12 On appeal, the plaintiffs attempt to raise additional claims, namely, (a) accepting military identification 

cards with the stated expiration date of "INDEF" but not identification cards issued by the Veterans Administration 

that lack any expiration designation; (b) accepting an Indiana photo identification card but not a government-issued 

Medicare identification card that lacks a photograph and expiration date; (c) permitting voting without a photo 

identification by persons with faith-based objections to being photographed; (d) creating a system where obtaining 

an identification card is more burdensome for some than other Indiana citizens; and (e) accepting identification 

cards issued by some but not all Indiana colleges and universities. Because these claims were not presented to the 

trial court, we decline to address them on appeal.
14

tentions: (a) that the photo identification requirement is not reasonably related to the inherent characteristics that distinguish in-person and absentee voters; (b) that, among the in-person voters, variations in the 

photo identification requirement are not reasonably related to the differences among affected voters; and 

(c) that "for all these classifications, the preferential treatment is not equally available to all voters." Appellants' Br. at 30. 

Employing the first Collins factor, and contrasting the in-person and absentee voters, the plaintiffs

generally contend that the photo identification requirement is not reasonably related to the inherent characteristics that distinguish these two classifications of voters. The Voter ID Law requires proof of identification for in-person voters but not for persons who vote by mailing in an absentee ballot. The plaintiffs

argue that these two classifications are distinguished on the basis that mail-in absentee ballots require 

heightened security and that this difference does not rationally support imposing additional identification 

requirements upon in-person voters. They also assert that the preferential treatment accorded mail-in absentee voters is not reasonably related to the distinctions between the classes.

The first factor in the Collins analysis involves considering both the nature of the characteristics

that distinguish the classes and the relationship between the disparate treatment and such characteristics. 

Under this first factor, a statute may result in different treatment for different classifications of people 

without offending Section 23 if both (a) the disparately treated classifications are rationally distinguished 

by distinctive, inherent characteristics, and (b) such disparate treatment is reasonably related to such distinguishing characteristics. Ledbetter v. Hunter, 842 N.E.2d 810, 813 (Ind. 2006); Collins, 644 N.E.2d at 

79.

The plaintiffs first compare the classifications of in-person voters with mail-in absentee voters. 

These two classifications are principally distinguished by the fact that an in-person voter, unlike a mail-in 

absentee voter, personally appears before election officials who can verify the identity of the person seeking to cast a vote. The plaintiffs urge that the photo identification requirement for in-person voters does

not reasonably relate to the inherent differences between in-person voters and mail-in absentee voters. 

The plaintiffs argue in part that, because the nature of absentee ballots requires a heightened security, the imposition of higher identification security on in-person voters is not reasonably related to the 
15

differences between the classifications. This interest in heightened security may be of particular concern 

in the regulation of absentee voting, but it is not determinative on the issue presented. The plaintiffs argue 

that the special treatment provided to mail-in absentee voters "do[es] not support the claimed purpose of 

the Photo ID Law." Appellants' Br. at 32. But such focus on the "purpose" of the Law is not determinative. As we noted in Dvorak v. City of Bloomington, 796 N.E.2d 236 (Ind. 2003), Collins "requires only 

that . . . 'the disparate treatment accorded by the legislation,' not the purposes of the legislation, 'be reasonably related to the inherent characteristics which distinguish the unequally treated classes.'" Dvorak, 

796 N.E.2d at 239 (quoting Collins, 644 N.E.2d at 79).

More significantly, other critical attributes distinguish the identified disparately treated classes, 

especially the practicability of requiring and efficaciously utilizing photo identification for mail-in absentee voters, in contrast to in-person voters. For ballots received by mail, there is no opportunity for an 

election official to personally compare the voter with the voter's photo identification to verify identity. 

Absentee ballots "reach the hands of election officials outside of the confines of the Election Day polling 

place." Horseman v. Keller, 841 N.E.2d 164, 172 (Ind. 2006). The plaintiffs do not propose any method 

by which a photo identification requirement could be effectively utilized to verify the identity of a mail-in 

absentee voter. Legislation is not constitutionally deficient for failing to impose an unenforceable, useless 

requirement. We find that not requiring photo identification for mail-in absentee voters is reasonably related to the inherent distinctions between such voters and those voting in person. We decline to find that 

the Voter ID Law's failure to require photo identification of mail-in absentee voters violates the Indiana 

Equal Privileges and Immunities Clause.

The plaintiffs assert multiple arguments with respect to the Voter ID Law's provision regarding 

certain voters living and voting in state licensed care facilities. One of the statutes comprising the Voter 

ID Law provides: "A voter who votes in person at a precinct polling place that is located at a state licensed care facility where the voter resides is not required to provide proof of identification before voting 

in an election." Ind. Code § 3-11-8-25.1(e). This provision serves as a basis for the plaintiffs to claim a 

Section 23 violation under both Collins factors.

Using the first factor of the Collins methodology, the plaintiffs assert that the statute violates Section 23 by permitting residents of state licensed care facilities to vote at their residence without photo 
16

identification while requiring such identification as a prerequisite to voting by other seniors living elsewhere. They argue that "the distinctions between in-person senior citizen voters are not reasonably related to the different treatment accorded by the [Voter ID] Law." Appellants' Br. at 40. The plaintiffs also employ the second Collins factor, arguing that the statute grants preferential treatment to residents of 

certain state licensed care facilities but "does not grant similar relief to the elderly who are able to remain 

out in the community but who would have the same difficulties in procuring the requisite identification." 

Id. at 43. The plaintiffs thus assert that such privileged classification is not "open to any and all persons 

who share the inherent characteristics [that] distinguish and justify the classification" nor is the "particular 

classification . . . extended equally to all such persons." Id. at 42–43 (internal citation omitted).

The relief sought by the plaintiffs is that the entire Voter ID Law be declared unconstitutional, not 

the overturning of the special exception for voters living in state licensed care facilities that serve as precinct polling places on election day. In light of the relatively extremely small number of voters excluded 

from the photo identification requirement under this exception, even if arguably violative of Section 23, 

we find that it represents a minor and insubstantial disparity permissible under Section 23. See Dvorak, 

796 N.E.2d at 240. We explained in Dvorak that, in applying Section 23, "[e]xact exclusion and inclusion 

is impractical," and noted the following observation from Collins: 

It is almost impossible to provide for every exceptional and imaginary case, and a legislature 

ought not to be required to do so at the risk of having its legislation declared void, even though

appropriate and proper as applied to the general subject upon which the law intended to operate. 

796 N.E.2d at 240 (quoting Collins, 644 N.E.2d at 80 (quoting Cincinnati, Hamilton & Dayton Ry. Co. v. 

McCullom, 183 Ind. 556, 561, 109 N.E. 206, 208 (1915))). Applying Dvorak, we find that granting a 

special privilege to residents of state licensed care facilities to vote at their residence without photo identification constitutes only a minor insubstantial variation that does not render sufficient disparate treatment 

to warrant judicial invalidation under Section 23.

Finally, in determining whether Section 23 is violated, we "must exercise substantial deference to 

legislative discretion." Collins, 644 N.E.2d at 80. Given the scope of the undertaking embraced in the 

Voter ID Law's efforts in enhancing the integrity of the electoral process and its attempt to tailor its operation to a significant variety of circumstances, we conclude that the possible absence of precise congruity 

in application to all voters represents a legitimate exercise of legislative discretion warranting our deference.
17

Conclusion

We conclude that it is clear on the face of the complaint that the plaintiffs, as a matter of law, are 

not entitled to the relief sought. It is within the power of the legislature to require voters to identify themselves at the polls using a photo ID. 

This result may contrast with a somewhat analogous case in our sister state of Missouri, Weinschenk v. State, 203 S.W.3d 201 (Mo. 2006). In that case, particular voters sued to block enforcement of

a 2006 Missouri statute requiring registered voters to present certain types of photo ID to vote. Ms. Kathleen Weinschenk and the others claimed that the new law required them and other voters—particularly 

those who are low-income, disabled, or elderly, and who do not have driver's licenses—to spend money to 

obtain the necessary documents such as birth certificates in order to obtain the requisite photo ID in violation of the Missouri Constitution's provisions relating to equal protection and the right to vote. Id. at 

204.13 The Missouri Supreme Court held that while ―there is a compelling state interest in preventing 

voter fraud, the evidence supports the trial court's conclusion that the Photo-ID Requirement is not narrowly tailored to accomplish that purpose.‖ Id. Accordingly, it found the statute unconstitutional. Id.

Not only do the constitutions of Indiana and Missouri vary, but also our statute differs from Missouri’s—notably, a requisite photo ID can be obtained from the Indiana Bureau of Motor Vehicles at no 

cost, Ind. Code § 9-24-16-10—and we do not mean to suggest that the facts present in the Missouri case 

would necessarily warrant declaring the Indiana Voter ID Law unconstitutional. But we do not foreclose 

 

13 Weinschenk, the first named plaintiff, did not have a birth certificate, had been born in another state, and 

was a person with cerebral palsy who alleged that obtaining a proper photo ID would be a substantial burden. 

Another named plaintiff, William Kottmeyer, had limited mobility, making it difficult for him to gather the necessary documents to obtain a non-driver's license and to stand in line at the Department of Revenue. Another named 

plaintiff, Robert Pund, has a physical condition that required him to arrange transportation to and from the Department of Revenue and to employ an attendant to assist him in order to obtain a non-driver's license. Another named 

plaintiff, Amanda Mullaney, was born in another state, and her current name did not match the name on her birth 

certificate because her parents were not married at the time of her birth, requiring proof of name change by means 

of either a certified court order or a certified amended birth certificate. Another named plaintiff, Richard von 

Glahn, unsuccessfully attempted to obtain a non-driver's license because he did not have the required $11 fee. He 

also lacked a birth certificate, for which the state of his birth (Ohio) would have charged him $20. Another named 

plaintiff, Maudie Mae Hughes, was born in another state (Mississippi), but the state had repeatedly informed her 

that it did not have any record of her birth, thereby compounding her difficulties in obtaining the photo ID necessary to vote in Missouri. Id. at 209.
18

such as-applied claims. Here the plaintiffs seek a declaration that it is unconstitutional to require voters to 

identify themselves at the polls using a photo ID. This is relief to which the plaintiffs are not entitled. 

But in affirming the trial court, we do so without prejudice to future particularized as-applied claims.

We affirm the judgment of the trial court granting the appellee's motion to dismiss and rejecting

the plaintiffs' claims that the Indiana Voter ID Law contravenes Article 2, Section 2 or Article 1, Section 

23 of the Indiana Constitution. 

Shepard, C.J., and Sullivan and Rucker, JJ., concur. Boehm, J., dissents with separate opinion. 
Boehm, Justice, dissenting.

I respectfully dissent. In broad brush, the issue in the federal constitutional challenges to Indiana’s

voter identification law was whether the burdens this requirement imposed on some citizens’ right to vote 

were severe enough to overcome the presumption we give to all acts of the General Assembly. The 

Supreme Court of the United States resolved that issue against the plaintiffs, at least as far as any 

provision of the Federal Constitution is concerned. Crawford v. Marion County Election Bd., 128 S. Ct. 

1610, 1615 (2008). The majority for the most part addresses this case as if that were the issue before us 

today. The majority categorizes the voter ID requirement as a regulation implementing the registration 

requirement and concludes that a regulation is valid if ―reasonable and uniform.‖ The majority dismisses 

the acknowledged problems that some voters may have in obtaining a voter ID as justified by perceived 

benefits in the integrity of the election.

As I see it, the state constitutional claim is quite different. The principal issue in this case is not a 

balancing of the relative benefits, if any, of a voter ID requirement against the problems that requirement 

creates for some citizens, if perhaps relatively few. The central question is who gets to resolve that issue 

under the Indiana Constitution. Under our Constitution some issues are immunized from revision by the 

temporary majority that comprises one session of the legislature, and must be addressed by the more 

deliberate and time consuming process of constitutional amendment. Article 16 of the Indiana 

Constitution permits amendment of the Constitution by agreement of a simple majority of each house in 

two successive General Assemblies, followed by approval by the voters of this state. This process is far 

less difficult than the approval by two-thirds of each house of Congress and ratification by three-quarters 

of the state legislatures needed to amend the Federal Constitution. U.S. Const. art. V. But it nonetheless 

represents the decision of the framers of our State Constitution to reserve some issues from the normal 

legislative process and require a more deliberative process, more extended debate, and a consensus over a 

longer period of time than is needed for ordinary legislation.

One of the subjects that the Indiana Constitution reserves to the amendment process is the 

―qualifications‖ for voting. The question in this case is whether our State Constitution permits one 

session of the General Assembly to impose a voter ID requirement on Indiana voters, or requires that two 

successive sessions of the legislature agree that this measure is necessary, and then submit it to the voters 

for the people to make the final decision. For the reasons given below, I think both precedent and the 

language of the Indiana Constitution dictate that the voter ID requirement is an unauthorized qualification 
2

for casting a ballot. That requirement therefore can be imposed only if two successive sessions of the 

General Assembly and the voters of this state agree it is appropriate.

Article 2, Section 2 of the Indiana Constitution, entitled ―Voting Qualifications,‖ provides that ―A 

citizen of the United States, who is at least eighteen (18) years of age and who has been a resident of a 

precinct thirty (30) days immediately preceding an election may vote in that precinct in the election.‖ 

This section prescribes three, and only three, qualifications to vote: citizenship, age of eighteen or more, 

and residence in the precinct. It is quite different from the provisions of the 1851 Constitution, which 

limited voting to males, required that voters be 21 years of age, and imposed much longer residency 

requirements. Importantly, until 1881, even registration of voters was not authorized by the Indiana 

Constitution. Registration is now constitutional, but that hook does not support the voter ID requirement, 

and there is no other basis in the Constitution to deny voting rights to those unable to produce a voter ID.

Over the years the Constitutional provisions relating to voting have been amended on five 

different occasions, for the most part relaxing eligibility requirements and expanding the right to vote to 

groups previously excluded. Ind. Const. Ann. art. 2, § 2, at 392–93 (West 2007). For our purposes the 

most important of these is Amendment 3, one of a group of nine constitutional amendments that were first 

submitted to the voters in the 1880 spring election but had been declared invalid in State v. Swift, 69 Ind. 

505 (1880), for failure to receive the required voter approval. Amendment 3 was resubmitted and 

ultimately adopted in 1881. For the first time it added to the Indiana Constitution the power of the 

General Assembly to require registration of voters. That authority is found today in Article 2, Section 

14(c), which provides in its entirety: ―The General Assembly shall provide for the registration of all 

persons entitled to vote.‖ The need for an explicit constitutional authority to support the registration 

requirement was set forth in Governor Porter’s recommendation that the General Assembly resubmit the 

invalidated amendments to the voters. House Journal, Fifty-Second Session, 81, quoted in 2 Charles 

Kettleborough, Constitution Making in Indiana 178–80 (1916). After noting the potential for voter fraud 

without registering voters before the election, the Governor explained that the Indiana Constitution alone 

sets the requirements for voter eligibility, and the 1851 Constitution did not authorize a registration 

requirement. Id. at 178–79. As a result, without the proposed amendments, ―No registration law can be 

passed; the Constitution will not allow one.‖ Id. at 179. In short, the voter registration we all accept 

today is itself a qualification for voting that requires specific constitutional validation. The courts have 

repeatedly confirmed Governor Porter’s view that the legislature cannot impose qualifications for voting 
3

beyond those prescribed by the Constitution. E.g., Fritch v. State, 199 Ind. 89, 92, 155 N.E. 257, 258 

(1927) (―When the Constitution defines the qualifications of voters such qualifications cannot be changed 

nor added to by statute.‖); Morris v. Powell, 125 Ind. 281, 287, 25 N.E. 221, 223 (1890) (invalidating as a 

qualification a requirement that voters absent from the state for six months produce a certificate of 

property ownership).

The majority finds the voter ID to be a reasonable implementation of the registration requirement. 

The problem, of course, is that the plaintiffs claim that some eligible citizens are unable or unwilling for 

various legitimate reasons to obtain a voter ID, particularly in light of the recent restrictions designed to 

address national security concerns. We ordinarily give wide latitude to legislative judgment on matters of 

reasonable relationship in classifications created by statute. But any limitation on the right to vote surely 

strikes at one of the core values embodied in the Indiana Constitution. As Justice Mitchell of this Court 

put it 120 years ago:

Those provisions of the constitution which define the right of suffrage, and prescribe the 

qualifications of persons entitled to its exercise, and those statutes which look to the 

guarding of the purity of elections, and the integrity of the ballot-box, demand the gravest 

and most deliberate consideration whenever they are drawn into judicial discussion.

Morris, 125 Ind. at 297, 25 N.E. at 229. Legislation governing who can vote, and how, is a product of a 

legislature that depends on elections. Only the judiciary can preserve the rights of the citizens against 

dilution by the elected branches of government. To borrow a phrase from federal jurisprudence, whether 

a matter is properly viewed as a registration requirement validated by Article 2, Section 14 therefore 

requires ―strict scrutiny.‖ The voter ID does not pass that test because, at least as alleged in the 

complaint, it requires satisfying conditions designed to meet other regulatory purposes and thereby 

imposes conditions on voting not authorized by the registration provisions.

To the extent language from Simmons v. Byrd, 192 Ind. 274, 136 N.E. 14 (1922), suggests a more 

deferential standard of review of legislation imposing requirements in the guise of regulating the 

registration process, I believe that opinion went significantly further than the facts of that case required 

and should not be followed. The only issue in that case was the validity of registration requirements that 

have long been accepted in this state and are minimally necessary to operate a registration plan as Article 

2 of the Indiana Constitution has authorized since 1881. The law in question dealt largely with the 

mechanics of registration and required of the voter only that the voter be registered, which could be 
4

accomplished in person or by mail or by delivery by another voter on the days designated, or by mail to 

the county auditor for delivery. To the extent the Simmons opinion suggested other more onerous 

requirements were permissible as registration regulations unless compliance was ―practically impossible,‖ 

it is dicta and should not be followed here. Id. at 286, 136 N.E. at 18.

The voter ID law before us today was passed 125 years after the Indiana Constitution was 

amended to authorize registration of voters. It enjoys no constitutional footing beyond the authorization 

in Section 14(c) to ―provide for the registration of all persons entitled to vote.‖ The issue, then, is whether 

that section authorizes the General Assembly to impose the requirement that every voter present a stateissued photo ID. Otherwise put, the issue is whether the requirement that a photo ID be presented at the 

polling station is merely a registration requirement. We are told that Indiana’s voter ID law imposes more 

stringent requirements than those demanded by any other state. Brief for Lawyers’ Committee for Civil 

Rights Under Law at 12–13. That alone does not establish the plaintiffs’ claim, but, as explained below, 

plaintiffs have alleged facts that, if established, demonstrate that the voter ID requirement goes beyond 

the demands of a registration scheme. If so, it violates the Indiana Constitution, and plaintiffs are entitled 

to their day in court to establish that claim.

This case comes to us as the grant of a motion to dismiss the complaint for failure to state a claim. 

We therefore accept the allegations of the complaint as true. Noblesville Redevelopment Comm’n v. 

Noblesville Assocs., 674 N.E.2d 558, 562 (Ind. 1996). Plaintiffs allege that not all registered voters 

possess a valid photo ID, and the photo ID requirement has prevented or discouraged an indeterminate 

number of voters from casting a vote that counts. Plaintiffs cite instances of voters who present 

themselves at the polls without a photo ID and are allowed to cast a provisional ballot, but then are unable 

or unwilling to complete the process required within the next ten days for the vote to be counted. 

Plaintiffs also allege other instances where registered voters have simply been turned away for lack of a 

photo ID. These allegations are sufficient in my view to survive a motion to dismiss the complaint. 

Moreover, in their briefs plaintiffs elaborate on the bare bones of their complaint to allege that compliance 

with the requirements for a photo ID is not a simple process for every voter, and that recent steps designed 

to enhance the driver’s license and photo ID have further complicated that process. For example, voters 

who have remarried in another state, or were not born in a hospital, may face extreme difficulty in 

obtaining a voter ID in their current name. If so, the voter ID law goes beyond regulating the process of 

election, and disqualifies voters whom the Indiana Constitution declares to be eligible to vote.
5

The photo ID cannot be justified as a registration requirement for a second reason: some of the 

restrictions placed on obtaining a state-issued ID do not address the legitimate concerns of preventing 

voter fraud. The process of obtaining a photo ID is the product of a regulatory scheme that has nothing to 

do with voter fraud. Its requirements were originally designed to regulate motor vehicle operators, and 

have now been expanded to include elaborate provisions aimed at limiting access to many facilities, for 

example commercial air travel, for national security reasons. Moreover, a photo ID is not required in the 

process of registering to vote, nor is a photo ID provided to a person who registers to vote. Crawford, 128 

S. Ct. at 1614; Ind. Election Div., 2010 Indiana Voter Registration Guidebook 8–21. But it is available to 

persons who are not citizens or are under the age of eighteen and cannot vote. And the photo ID is 

required to have an expiration date. These provisions, designed to assure competence of motor vehicle 

operators, render the photo ID overinclusive as a voter registration requirement. It is also underinclusive 

because, in addition to carrying burdens unnecessary to a voter registration law, it fails to address the 

most obvious potentials for abuse of the registration process. To the extent we have instances of voter 

fraud, they have been in the use of absentee ballots that are not subject to the photo ID requirement, not in 

instances of voters appearing at the polls claiming to be someone they are not. Pabey v. Pastrick, 816 

N.E.2d 1138, 1140–41 (Ind. 2004) (finding ―a deliberate series of actions‖ that ―perverted the absentee 

voting process‖); see also Crawford, 128 S. Ct. at 1618–19 (―The record contains no evidence of any [inperson voter impersonation] actually occurring in Indiana at any time in its history.‖). The parties cite not 

a single instance of a voter appearing at the polls only to find that someone else has already cast his or her 

ballot. These problems, to the extent they exist, can be addressed as some other states have done by 

requiring some reliable evidence that the person shown on the registration lists still resides at the address 

shown on the polls. This can be done by producing utility bills and bank statements, as some states have 

done, or the traditional Indiana solution of requiring an affidavit from a challenged voter that the person is 

who he or she claims to be.

I also find problems in the majority’s analysis of the plaintiffs’ claim that the voter ID statute 

violates the Equal Privileges and Immunities Clause found in Article 1, Section 23 of the Indiana 

Constitution. That Clause provides 

The General Assembly shall not grant to . . . any class of citizens, privileges or immunities 

which, upon the same terms, shall not equally belong to all citizens.
6

On its face, the voter ID law grants a privilege—voting without a photo ID—to some classes of citizens, 

but not to all. The majority dismisses some of the plaintiffs’ claims as insubstantial because only a small 

percentage of voters are in the favored classifications. But a small number of voters can determine the 

outcome of an election, as the national experience with the 2000 Florida presidential election 

demonstrated so dramatically. And even if the majority were correct that the statute may be saved 

because it disenfranchises only a few voters, there is nothing in this record that permits us to determine 

the number of affected voters. Most importantly, I believe we all have an interest in a full and fair 

electoral process, and the right to vote is of value only if others are granted equal access to the polling 

booth. A statute that wrongly denies any group of citizens the right to vote harms us all, and therefore 

may properly be challenged as invalid in its entirety, not merely as to those directly affected. Thus I do 

not agree with the majority that the remedy the plaintiffs seek here—invalidating the voter ID 

requirement—is beyond their grasp.

The majority does not address the plaintiffs’ claim that the voter ID requirement violates Section 

23 because it imposes substantially greater burdens on some citizens than it does on others. This claim 

also presents an issue for trial. We have recognized that ―a statute that is constitutional on its face may be 

unconstitutional as applied to a particular plaintiff.‖ Humphreys v. Clinic for Women, Inc., 796 N.E.2d 

247, 257 (Ind. 2003). That doctrine has been held specifically applicable to claims under Section 23. Id.

at 258. I think it is clear that a statute need not create the classification in order to violate Section 23 by 

conferring privileges on some citizens that are not available to all. To illustrate that point, consider a 

statute that provides that all voters must transport themselves to the polls on foot, but excludes from that 

requirement persons in wheelchairs and those over eighty years old. On its face these exclusions are 

reasonable, but the statute nonetheless has a dramatically different effect on persons who live at remote 

locations from the polling booth. Ordinarily a claim of unconstitutionality by reason of uneven impact on 

different persons would sustain a claim of relief only by the adversely affected individuals.

As a final point, because the majority finds the law constitutional, the majority is not required to 

address the State’s contention that these plaintiffs do not have standing to challenge the voter ID law, and 

does not do so. I believe all citizens have the standing to attack a statute that unconstitutionally denies 

any voter the right to exercise his or her electoral franchise. We all have an interest in an election that is 

lawful, and the right to vote is meaningful only if others of like mind are also entitled to vote according to 

the Constitution. Indeed, it is difficult to conceive of a right that is more clearly a ―public right‖ than the 
7

right to vote and participate in a lawful election. It therefore may be enforced under the public standing 

doctrine long recognized by this Court and most recently reconfirmed in Cittadine v. Department of 

Transportation, 790 N.E.2d 978 (Ind. 2003).

In sum, the plaintiffs’ allegations of substantial impediments to the exercise of the right to vote are 

sufficient to withstand a motion to dismiss the complaint. I would remand this case to permit the 

plaintiffs to attempt to prove their case.
ATTORNEYS FOR AMICI CURIAE

BRIEF OF PROFESSORS MADISON, LEVINSON, AND 

ETCHESON IN SUPPORT OF APPELLANTS 

Andrew Mallon

Drewry Simmons Vornehm, LLP

Indianapolis, Indiana

Craig A. Cowie

Carrie F. Apfel

Daniel I. Weiner

James C. Cox

Jenner & Block LLP

Washington, DC

BRIEF OF LAWYERS’ COMMITTEE FOR CIVIL 

RIGHTS UNDER LAW IN SUPPORT OF APPELLANTS

Jon M. Greenbaum

Robert A. Kengle

Lawyers’ Committee for Civil Rights Under Law

Washington, DC

Kathleen M. Sweeney

Schembs Sweeney Law

Indianapolis, Indiana

Sri Srinivasan

Charles E. Borden

Micah W.J. Smith

O’Melveny & Myers LLP

Washington, DC

BRIEF OF LONNA RAE ATKESON, MATT A. BARRETO,

LORRAINE C. MINNITE, JONATHAN NAGLER, STEPHEN 

A. NUÑO AND GABRIEL RAMON SANCHEZ IN OPPOSITION 

TO DEFENDANT’S PETITION TO TRANSFER

A. Douglas Stephens

Clermont, Indiana

BRIEF OF AARP AND NATIONAL SENIOR CITIZENS 

LAW CENTER IN SUPPORT OF APPELLANTS

Daniel B. Kohrman

AARP Foundation Litigation

Washington, DC

Brenda Wright

Demos: A Network for Ideas & Action

Brighton, Massachusetts

John W. Borkowski

Hogan & Hartson L.L.P.

South Bend, Indiana

Joshua D. Weinberg

Hogan & Hartson L.L.P.

Washington, DC

BRIEF OF LEAGUE OF WOMEN VOTERS OF THE 

UNITED STATES

Michael K. Sutherlin

Michael K. Sutherlin & Associates, PC

Indianapolis, Indiana

Lloyd Leonard

League of Women Voters of the United States

Washington, DC

Michael H. Jacobs 

Justine E. Daigneault

Crowell & Moring LLP

Washington, DC

Amy T. Tridgell

Crowell & Moring LLP

New York, New York

BRIEF OF AMICI CURIAE

Eric Koselke

Indianapolis, Indiana

M. Laughlin McDonald

American Civil Liberties Union, Inc.

Voting Rights Project

Atlanta, Georgia

Anita Earls

Southern Coalition for Social Justice

Durham, North Carolina

BRIEF OF THE NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC. IN OPPOSITION TO 

DEFENDANT’S PETITION TO TRANSFER

NAACP Legal Defense & Educational Fund, Inc.

New York, New York

NAACP Legal Defense & Educational Fund, Inc.

Washington, DC