A TTORNEYS FOR A PPELLANT S A TTORNEY S FOR A PPELLEE A TTORNEYS FOR A MICI C U RIAE

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 Att orney General Indianapolis, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 49 S0 2

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- C V

- 50

_________________________________ L EAGUE OF W OMEN V OTERS OF I NDIANA , I NC

. , AND L EAGUE OF W OMEN V OTERS OF I NDIANAPOLIS , I NC

. , Appe l lant s (Plaintiffs below)
,

v.

T ODD R OKITA , IN HIS OFFICIAL CAPA CITY A S I NDIANA S ECRETARY OF S TATE , Appe l lee (Defendant below)

.

___________________________ ______ Appeal from the Marion Superior Court , No. 4 9D13

- 0806

- PL

- 27627

The Honorable S.K. Reid , Judge

_________________________________ On T ransfer from the Indiana Court of Appeals, No. 4 9 A0 2

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_________________________________

June 30 , 2010

D ickson, Justice

.

The sole plaintiffs in this case, the Indiana State and Indianapolis chapters of the League of Wo men Voters, brought this action seeking a declaratory judgment that the Indiana Voter ID Law violates A rticle 2, Section 2, and Article 1, Section 23 of the Indiana Constitution. T he trial court granted the defe n-2

dant's motion to dismiss, concluding that the Voter ID Law did not violate e i ther constitutional provision. The Court of Appeals reversed. L eague of Women Voters of Ind. , Inc. v. R ok i ta , 915 N.E.2d 151 (Ind. Ct. App. 20 0 9 ). 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 e x ercising the right to vote.

T he relief the plaintiffs seek is a declaration that it was beyond the power of the l egislature to r equire any voters to identify themselves at the polls using a photo ID. 1 Voters have long been r e quired to identify themselves at the polls by announcing an d signing their names. Neither of the c onstitutional pr ovisions the plaintiffs invoke prevents the l egislature from promulgating a new way for voters to ident i fy
themselves. I t is within the po w er of the l egislature to require voters to identify themselv es at the polls using a photo ID . The plaintiffs' claim for relief cannot be granted and dismissal was appr o priate. 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

pa r ties as the Indiana Voter ID Law, made several modifica tions to Indiana's election and motor vehicle
laws. T h is L aw was challenged in federal court where t he plaintiffs c laimed that it violated the First and Fourteenth Amendments of the United States Constitution as well as 42 U.S.C. § 1971, and Article 2,
Se c tions 1 and 2 of the Indiana Constitution. The District Court rejec ted the plaintiffs' challenges and uph e ld 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. Crawfor d v . Marion County Election B d

. , 472 F.3d 949 (7 th Cir. 2007) , aff'd
, 553 U.S. 181, 128 S. Ct. 16 10, 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 ("C omplaint") 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 legi s lative apportionment plan in two lawsuits, there were seven individual plaintiffs in one lawsuit and eight in the ot h er 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, t he challenges to the Voter ID Law center on its requirement, as summari zed by Justice Stevens for the United States Supreme Court, that:

. . . c itizens voting in person on election day, or casting a ballot in person at the office of the ci rcuit court clerk prior to election day, [ must ] present photo identification issued by t he government.

. . . [T]he statute applies to in

- person voting at both primary and general elections. The r equirement does not apply to absentee ballots submitted by mail, and the statute contains an exce ption 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 with in 10 days following the election. A voter who has photo identification but is unable to present that identification on election day may file a provision al ballot that will be counted if she brings her photo identification to the circuit county clerk's of fice within 10 days. No photo identification is required in order to register to vote, and the State offers free photo identification to qualified

vo t ers 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)

.

I n June 2008, the plaintiffs instituted the present state court action challenging the Voter ID Law

. 3
When t heir constitutional claims were r ejected and their action dismissed by the t rial court, the plaintiffs instituted this appeal
, in es sence claiming violations of Article 2, Sectio n 2, and Article 1, Se c tion 23 of
the Indiana Constitution

. T he plaintiffs seek a general judicial nullification of the Ind i ana Voter ID Law.
Th is case pres ents facial but not as

- applied constitutional challenges. The amended co m plaint does not seek individual relief under any claim that the Vote r ID Law is unconstitutional as applied to e i ther of the plaintiffs but rather seek s only a general declaratio n that "the Indiana Ph o to 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 unconst i tutional as applied t o 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 disco u raged an indeterminate number of citizens from voting; (2) the votes of 32 persons who did not produce the requisite ph oto ID were not counted in the 2007 municipal election in Marion County; (3) the votes of 12 nuns who did not pr oduce 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 who se requisite photo ID was lost or stolen or who fo rgot to bring their requisite pho to ID to the polls; and (5) the Law has discouraged or dissuaded an indeterm i nate number of citizens from voting because of its "extra

- constitutional requirements. " Complaint ¶¶ 17

– 20 ; Appe l lants' App'x at 13

– 14 . N one 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 sp e cific voters to more tailored relief
, bu t 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. ] R esponse in Opposition to Defendant 's M o tion to Dismiss, Appellant s ' Supp. App'x at 35

– 3 7; Appellants' Br. at 43

– 45. We therefore treat this case as a l leging only claims of
facial unconstitutionality and do not address the availability of claims alleging that the Law is unconstit utional as a p plied

.

The plaintiffs argue that it is beyond the power of the l egislature 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 spec ified in Article 2
, Section 2; 4 (2) The Voter ID Law violates the prohibition on granting privileges or immunities to any citizen or c lass 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 cit izens , voters casting a b sentee ballots by mail
, to comply with its provisions; 5 and (3) The Vo ter ID Law violates the Privileges and Immunities Clause because it does not require a class of citizens , v oters wh o both live and vote in a state licensed care facility , t o 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 qualific ations in Article 2, Section 2 of the Indiana Constitution , the plaintiffs contend that the only permiss i ble voting qualifications are those expl icitly establis hed in Article 2 and that the Voter ID Law is unconstit utional because (a) it imposes a new substantive qua lification on the right to vote; (b) it is not a registr a tion law authorized by Article 2, Section 14 (c ) of the Indiana Constitution; and (c) it is n ot uniformly applic able to all voters. With respect to these arguments, the following provision s of the Indiana Constitution are
rel e vant:

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 citize n of the United States, who is at l east eighteen (18) years of age and who has been a resident of a precinct thirty (30) days im mediately preceding an election may vote in that precinct at the election. (b) A citizen may not be disenfranchised under s ubsection (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 citi zen previously resided if, on the date of the election, the citizen's name appears on the registration rolls for the pr e cinct.

* * *

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 a dministration of elections but argue that the Voter ID Law is not merely a procedural regulation but r a ther "adds a new substantive voting qualification not authorized by the Indiana Constitution." Appe l lants ' Br.
at 18. This contention was presented and rejected in the federal l iti gation. Judge Barker, whose jud g ment

was s ubsequently affirmed by the Seventh Circuit and by the United States Supreme Court in a 6

- 3 vote ,

e x plained: 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 en acts a new voting regulation since, as we have previously noted, u nder 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] v i olates Indiana Constitution Arti cle 2, section 2

.6

Ind. Democratic Party , 458 F. Supp. 2d at 843 . A federal court's in terpretation of Indiana law is not bin ding on Indiana state courts. See Evan v. Poe & Assocs. , 873 N.E.2d 92, 103 (Ind. Ct. App. 2007)
, trans. not sought ; Burk v. Herit age Food Serv. Equip., Inc

. , 737 N.E.2d 803, 812 n.1 (Ind. Ct. App. 2000)
, trans. not sought

. In a d dition, while the doctrine of collateral estoppel precludes parties " from raising issues in state court that have been finally determined as to the same par ties 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 litig ation as in the federal litigation. Indiana Secretary of State Todd Rokita was and is a defendant in both cases, but the plaintiffs here we re not parties in the fe d eral lawsuit.

To support thei r 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 qualific ations established by the Indiana Constitution and that the Voter ID Law is not a permissible procedural regul a tion but instead is a statute that imposes a new property qualification and arbitrary, burdensome,
and exclusi o nary co n ditions on the right to vote o f cons titutionally 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 gene ral voter regi stration 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 a b sent from Indiana for six months or more or who had not resided in one co unty 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) r e quired a voter absent from Indiana for six months or more on stat e or federal government business to produce when voting a certificate from the county auditor verifying that the voter's name had continuou sly "been upon the tax duplicate of said county for the purpose of taxation, during his absence from the State, and t hat he is still a taxpayer in said county." Id

. a t 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 tax a ble property in the county and were more than fifty years old

. 7 Morris was an action brought against a cou n ty

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, bein g absent on business of the State or United states, and owning no taxable property in7

auditor to enjoin the payment for books furnished for registering votes under provisions of the 1889 st atute

. The Morris C ourt identified the question presented as whether the legislature can impose the ch a llenged obligations "on the class of voters therein specified, and to another class add a qualification not

r e quired by the Constitution to entitle them to vote." Id

. at 286, 25 N.E. at 223. The C ourt declared that the legislature lacked the authority t o 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 Ind iana for six months, was "both unreasonable and not impartial." Id

. at 29 4 , 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 C onstitution not only con fers 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 qualif ications not aut horized by the C onstitution 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 fo rget 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 Vo ter ID Law , is equivalent to the county auditor certif i cate found
to be unconstitutional in Morris

. Such government identification, they assert, should be considered an impermissible statutory "qualification" to vote, and thus violat ive of Section 2, "bec ause it imposes an u nnecessary and arb i trary burden on some voters." Appellants' Br. at 21

– 22.

Defending the Voter ID Law, t he 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." Appe llee's Br. at 13. He points to Article 2, Section 1 of the Indiana Constitution , which provides that all ele ctions "shall be free and equal
, " and argues that the General Assembly has the power to protect the r ights of citizens to "a fair and reliable electoral system in which their individual votes are not diluted b y the fraudulently cast votes of others." Id. He contends that the requir ements of the Voter ID Law are valid
and reasonable means of enforcing th e qualifications established in Article 2, Section 2. The defendant
stresses that in Morris the statutory provisions were not invalidated because they requir ed some voter s 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 a t tempting to vote, he would by this s ection 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 constit u tional qualifications of Article 2, Section 2. Rather, the provisions were invalidated in Morris "because they required doc u mentation of

some other extra

- constitutional qualification to vote, i.e. , 90

- day residency and property ownership." Id.
at 23. Citing Si mmons 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

. " Appe l lee's Br. at 1 5

.

Between 1881 and 1921, Article 2, Section 2 set forth the qua lifications for voting, followed by the phrase "if he shall have been duly registered according to law." Ind. Const. art. 2 , § 2 (1881). Anot her provision added in 1881 expressly required the Indiana General Assembly to "provide for the registr ation of a ll persons entitled to vote." Ind. Const. art. 2 , § 14 (1881). In 1921, the voter qualifications en umerated 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." 8 Ind. Const. art. 2 , § 2 (1921).

In Simmons , the plaintiff challenged various statutes that required voters to register before ta k ing part in elections , his claim based largely on the 1921 amendment's elimination of t he registration clause from Section 2 of Article 2. The principal claim in Simmons was that , w ithout the registration clause, Section 2 was violated by the statutory language that prohibited persons from voting unless regi s tered and subjected such unregis tered voters to be challenged and their votes excluded

. In Simmons , this C ourt upheld the registration provisions, emphasizing that the Indiana Constitution require s that "[a]ll elections shall be free and equal." Ind. Const. art

. 2 , § 1. It quoted with express approval from an opinion of the
I l linois Supreme Co urt, 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 le gislature 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 ele ctions are destroyed.

Si mmons , 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 th e 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 "a u thorizes 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 Mo rris to be an i mpediment to the legislature's authority to regulate elections

. Upholding a statutory requirement for voters to register twenty

- nine days before the election, th is Court forcefully co n cluded: Being charged by the constitution with the duty to "provide for the registration of all persons e ntitled 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

com plied with by a qualified voter in order that his ballot may be counted, so long as what it r equires is not so grossly unreasonable that compliance therewith is practically impossible. . . . [S]ince the legislature has power to provide by law for the regis tration 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 reasser ted 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 f or the registration of all voters." M o rris , 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 qual ific a tions, Morris must be viewed in its historical context

. The C ourt in Morris was c onfronted with the legi s lature's failure to enact a general voter registration law despite constitutional authorizat ion and then its adoption of an incomplete and selective registration system , one that operate d to disqualify certain vo ters for lack of property ownership . We find the essential holding from Morris and Simmons is that re asonableness and uniformity are required in the regulation of elections by means of a system of registr ation. We do not read Si mmons as granting a blanket authorization fo r 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 qu alification to the right to vote assured by Artic le 2. In our view, however, th e Voter ID L aw's requir e ment 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 Ar ticle 2 r e late to citizenship, age, and residency. Requiring qualified voters to present a specified form of identific a tion is10

not in the nature of such a personal, individual characteristic or attribute but rather function s mer e ly as an election regulati on to verify the voter's identity. When the United States Supreme Court reviewed the I ndiana Voter ID Law, the lead opinion, written by Justice Stevens on behalf of himself, Chief Justice R oberts, and Justice Kennedy, pointed out that Congress "believes t hat photo identification is one effe c tive 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 S tevens quoted with approval from the report issued by the Commission on Federal Election
R eform chaired by former President Jimmy Carter and former Secretary of State James A

. Baker, III, which emphasized: "The electoral sy s tem cannot inspire public confid ence 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 p l ane, enter federal buil d ings, 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 R e port )).

We conclude that the Indiana Voter ID Law's photo identification card requirements are in the n ature of an election regulation and, as such, must satisfy Indiana's requirements of uniformity and reason ableness . But the requirements of the Voter ID Law are not, as the plaintiffs urge, unconstitutional as add itional sub s tantive voter qualification s

.

B.

As an addition al argument claiming that the Voter ID Law violates Article 2, Section 2, the plai ntiffs assert that the l aw is not uniformly applicable to all voters. We augment this argument to also co nsider 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 ballo t or those who live in a state licensed care facility housing the voter's polling pl ace. They argue that, to obtain the required Indiana photograph identific a-

9 In the United States Supreme Court, Justice Stevens wrote the lead opinion, in which Chief Justice R oberts and Justice Kennedy concurred; Justice Scalia wrote a concurring opinion, join ed by Justices Thomas and Al ito; Justice Souter wrote a dissenting opinion, joined by Justice Ginsburg; and Justice Breyer wrote a separate di ssent.11

tion card, "a would

- be voter must present the original or certified copy of her birth certificate, a certif i cate of naturalization, a U.S. Veteran's photo identification, a U.S. military photo identifica tion, or a U.S. passport," many of which involve significant fees and /or hardship to obtain. Appe l lants ' Br. at 2 2

– 2 3.
The plaintiffs assert that these requirements make the Voter I D Law "burdensome, exclusionary and di squal i fying as to some voters
, " par ticularly non

- drivers and college students. Id

. at 23.

As to uniformity, we acknowledge that the Voter ID Law creates exceptions to its general r equirement for government

- issued photo identificati on as to mail

- in absentee voters and for voters living i n state licensed care facilities which house the voter's polling place. These exceptions, however, do not u ndermine the uniformity of the photo identification requirement for in

- person voting. They apply only with respect to special alternative voting ac commodations in which the photo identification requir e ment would be impracticable, unnecessary, or of doubtful utility. Such special exceptions no more create a fa tal lack of uniformity in the Voter ID Law than do the statutory provisions authorizing mail

- in absentee

vo t ing, 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 regula tions associated with additional accommodations extended by the le gislature to provide alternatives for voters for whom in

- person voting on election day wou ld be difficult or impossible.

W e are not persuaded that the photo identification requirements in the Voter ID Law are so unre asonable as to violate Article 2. The Law authorizes and provides guidelines to th e Indiana B ureau of M otor V ehicles for the issuance of non

- driver voter identification cards

. Ind

. Code §§ 9

- 24

- 16

- 1, 9

- 24

- 16

- 2,
9

- 24

- 16

- 3.5. T he 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, a ddress, social security number , and legal presence in the Unit ed States

. See Ind. Code § § 9

- 24

- 16

- 1 , 9

- 24

- 16

- 2, 9

- 24

- 16

- 3.5

. Under regulations promulgated by t he Bureau , an individual must provide doc u ments

to establish (1) identity, which includes full legal name and date of birth; (2) lawful status in t he United
States , which can be shown by a birth certificate, passport, or one of several other documents; (3) reside ncy in Indiana; and (4) a s ocial s ecurity n umber. 140 Ind. Admin. Code 7

- 1.1

- 3. T o assist indivi d uals in the process and to prevent the necessity fo r return trips to a Bureau branch, the Bureau has created an o nline list of the documents that can be used

. The Bureau also has a customer service telephone line to a s-12

sist people in retrieving the necessary documents

. Furthermore, t he Bureau may grant e x ceptions or use other verifiable documentation if an applicant is reasonably unable to gather the nece s sary documents.
140 I.A.C. 7

- 1.1

- 3(e). Finally, t he Bureau has established a system by which it can is sue an interim ide ntification card to allow an in dividual to vote wh ile the Bureau conducts its verific a tion 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 [Ind i ana Voter ID] statute imposes 'excessively burdensome requirements' on any class of voters" and that, cons idering the statute's broad applicat ion 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, 1 70 L. Ed. 2d at 590

– 91 ( internal citations
omitted ). 10 T he burdens occasioned by the Voter ID Law serve numerous substantial interests relating to
the use of tec h nology to modernize and to protect the integrity and reliability of the electoral process. We
find that t he requirements of the Indiana Voter ID Law, while enhancing the procedural burdens ass ociated with the voting process, are not sufficiently unreaso n able.

Because it is not alleged in the present case, we need not determine whether an as

- ap plied cha llenge 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 Nove mbe r 2008 general election, 1,039 provisional ballots were cast because a voter lacked the required photo identific ation. Of those 1,039 votes, 137 subsequently qualified and were counted after the election. That is, 902 provisional ballots cast because a v oter lacked the requisite photo ID were not counted. Br. of Amici Curiae Lonna Rae Atk eson et al. [political scientists who study elections] at 10 (citing Michael J . Pitts & Ma t thew D. Neumann, Doc umenting Disenfranchisement: Voter Identification at India na’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

— w hether they had been unable to obtain it or simply forgot to b ring 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 ele c tion, of the 4,514,759 r egistered voters, 2,805,986 (62 %) voted, 2,143,813 in person and 662,443 by absentee ballot. Ind iana Secretary of State Web site: http://www.in.gov/s os/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 Immun i ties Clause
of the India na Constitution: "The General Assembly shall not grant to any citizen, or class of citizens, pr ivileges or im m unities
, 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 ) e xempting from the photo identification requirement voters residing in state licensed care faciliti es at which

a pr e cinct 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 su b sequent 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 superse ding analytical formulation that
, w hen statutes grant u nequal privileges or immunities to differing persons or classes of persons, t he Equal Privileges and Immu nities Clause imposes two requirements: "First, the disparate treatment accorded by the legislat ion 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 s ituated." Id. at 80. In addition , "in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative di s cretion." Id.

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

11 The history associated with Section 23 and the value of equality for Indiana citizens is helpfully chr onicled and discussed in the Brief of Professors Madison, Levin son, and Etcheson as Amici Curiae in Support of Appellants.

12 On appeal, the plaintiffs attempt to raise additional claims, namely, (a) accepting military identific a tion cards with the stated expiration date of "INDEF" but not identification cards issued by the Veterans Administr a tion 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 p hoto ide n tification 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 bu t not all Indiana colleges and unive r sities. Because these claims were not presented to the trial court, we decline to address them on appeal.14

ten tions: (a) that the photo identification requirement is not reasonably related to the inherent characteri stics that distinguish in

- person and absentee voters; (b) that, among the in

- person voters, variations in the photo identification r equirement are not reasonably related to the differences among affected voters; a nd (c) that "for all these classifications, the preferential treatment is not equally available to all voters." A ppellants ' Br. at 30.

Employing the first Collins factor , and c ontrasting t he in

- person and absentee voters, the plaintiffs generally contend that the photo identification requirement is not reasonably related to the inherent ch aracteristics that distinguish these two class ifications of voters. The Voter ID Law requires proof of ident ification for in

- person voters but not for persons who vote by mailing in an absentee ballot

. The plaintiffs argue that these two class ifications are distinguished on the basis that mail

- in absentee ballots require heightened security and that this difference does not rationally support imposing addition al identif i cation requirements upon in

- person voters. They also assert that the preferential treatment accorded mail

- in a bsentee voters is not reasonabl y related to the dis tinctions between the class es.

T he first factor in the Collins analysis involves consider ing both the nature of the characteri s tics
that distinguish the classes and the relationship between the disparate treatment and such characteri s tics.
Under th is first factor , a statute may r esult in different treatment for different class ifications of people without offending Section 23 if both (a) the disparately treated class ification s are rationally disti n guished by distinctive, inherent characteristics
, and (b) such disparate treatment is reasonably related to such di stinguishing characteristics. Le d better v. H unter , 842 N.E.2d 810, 813 (Ind. 2006) ; Collins , 644 N.E.2d at
79

.

The plaintiffs first compare the class ifications of in

- person voters with mail

- in absentee voters. These two c lass ifications are principally distinguished by the fact that an in

- person voter , unlike a mail

- in absentee voter, personal ly appear s before election officials who can verify the identity of the person see king to cast a vote. The plaintiffs urge that the photo identification requirement for in

- person voters do es not reasonably relate to the inherent differences between in

- person voters and mail

- in absentee vo t ers.

The plaintiffs argue in part that, because the nature of absentee ballots requires a heig htened sec urity, the impos i tion of higher identification secu rity on in

- person voters is not reasonably related to the15

differences b e tween the class ification s. 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 a r gue 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 determin ative. 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 re asonabl y related to the inherent characteristics which distinguish the unequally treated classes.'" Dvorak
, 796 N.E.2d at 239 ( quoting Co l lins , 644 N.E.2d at 79 ).

More significantly, o ther critical attributes distinguish the identified disparately treated clas ses, especially the practicability of requiring and efficaciously utilizing photo identification for mail

- in abse ntee voters , in contrast to in

- person voters

. For ballots received by mail, there is no opportunity for an
ele c tion official to personally com pare 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 E lection Day polling place

. " Horseman v. Keller , 841 N.E.2d 164, 172 (Ind. 2006). The plainti ffs do not propose any m e thod 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 u n enforceable, useless requi rement. W e find that not requiring photo identification for mail

- in absentee voters is reasonably r elated to the inherent distinctions between such voters and those voting in person. We d e cline to find that the Voter ID Law's failure to require photo ide ntification of mail

- in absentee voters violates the Ind i ana Equal Pri vileges 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 fa cilities. 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 l icensed care facility where the voter resides is not required to provide proof of identification befor e vo t ing 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 v i olation under both Collins factors.

Using the first factor of the Collins methodology, t he plaintiffs assert that the stat ute violates Se ction 23 by permitting residents of state licensed care facilities to vote at their residence without photo16

identification while requiring such identification as a prerequisite to voting by other senior s living els ewhere. They argue that "t he distinctions between in

- person senior citizen voters are not reasonably r elated to the different treatment accorded by the [Voter ID] Law." Appellants ' Br. at 40. T he plaintiffs a lso employ the second Collins factor, arguing that the statute grants pr eferential treatment to residents of

ce r tain 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 diff iculties in procuring the requi site ident i fication."
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
classific a tion . . . extended eq ually to all such persons." Id

. at 42

– 43 (internal citation omitted)

.

T he relief sought by the plaintiffs is that the entire Voter ID Law be declared unconstitutional, not the overturning of the special exception for voters liv ing in state licensed care facilities that serve as pr ecinct polling places on election day . I n light of the relatively extremely small number of voters e x cluded from the photo identification requirement under this exception, even if arguably violative of Se c tion 23,

we find that it represents a m inor and insubsta n tial 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 Co l lins : 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 appropr i ate and proper as applied to the general s ubject upon which the law intended to operate.
796 N.E.2d at 240 ( quoting C ollins , 644 N.E.2d at 80 ( quoting C incinnati, Hamilton & Dayton Ry. Co. v.
McCullom , 183 Ind. 556, 561, 109 N.E. 206, 208 (1915))). Applying Dvorak , w e find that granting a speci al privilege to residents of state licensed care facilities to vote at their residence without photo ident ification constitutes only a minor insubstantial variation that does not render sufficient disparate treatment to warrant judicial invalidation under Se c tion 23

.

Finally, in determining whether Section 23 i s violated, we "must exercise substantial deference to legislative discretion." C ollins , 644 N.E.2d at 80 . Given the scope of the undertaking embraced in the Voter ID Law's efforts in enhancing th e integrity of the electoral process and its attempt t o tailor its oper ation to a significant variety of circumstances, we conclude that the possible absence of precise congru i ty 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 ide ntify the mselves at the polls using a photo ID.

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

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

— particula r ly
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 viol ation of the Missouri Constitution's provisions relating to equal protection and the right to vo te

. 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 na rrowly tailored to accomplish that purp ose. ‖ Id

. Accordingly, it found the statute unconstitutio n al. Id

.

Not only do the constitutions of Indiana and Missouri vary, but also our statute differs from Mi ssouri’s

— notably, a requisite photo ID can be obtained from the Indiana Bureau of Motor V e hicles 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 f o reclose

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 nece ssary doc u ments to obtain a non

- dr iver'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 Depar tment 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 proo f 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

a lso 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 rec ord of her birth, thereby compounding her difficulties in obtaining the photo ID nece ssary to vote in Missouri. Id . at 209.18

such as

- applied claims. Here the pl aintiffs 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 a f firming the trial court, we do so without prejudice to futur e particularize d as

- applied claims.

We affirm the judgment of the trial court grant ing the appellee's motion to dismiss and reje c t ing
the plaintiffs ' claim s that the Indiana Voter ID Law contravene s Article 2 , Section 2 or Article 1 , Se c tion
23 of the In diana Con stit u tion.

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 iss ue 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, 161 5 (2008)

. The majority for the most part addresses this case as if that were the issue befor e 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 voter s may have in obtaining a voter ID as justified by perceived benefits in the integrity of the ele c tion. 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, o f a voter ID requirement against the problems that requirement creates for some citizens, if perhaps relatively few. The central que s tion is who gets to resolve that issue
under the Indiana Constitution. Under our Constitution some issues are immunized f rom 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 Cons titution 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 r equire 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 nece ssary, 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 qualification2

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 a p propriate.

Article 2 , Section 2 of the Indiana Constitution, entitled ―Voting Qualifications,‖ p rovides 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 th e 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, Fif ty

- 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

s ets 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 qualifica tions for voting3

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.‖); M orris 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 imp lementation 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 des igned 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 v alues 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 st atutes 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, wh ether 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 r egistration 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 regi stration and required of the voter only that the voter be registered, which could be4

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 12 5 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 w hether
that section authorizes the General Assembly to impose the requirement that every voter present a state

issued photo ID. Otherwise put, the issue is whether the requirement that a photo ID be presented at the polling station is merely a registratio n 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 e n titled 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. , 67 4 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 instanc es 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 th eir 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
wh o 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 frau d. 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 provision s 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. Cra wford , 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 vot ers 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 [in

person 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 o r 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 o f 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, pr ivileges or immunities which, upon the same terms, shall not equally belong to all cit i zens.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 plainti ffs’ 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
demons trated 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 beli eve 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 there fore 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 sta tute that is constitutional on its face may be unconstitutional as applied to a particular plaintiff.‖ Humphr ey s 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 s tatute 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 accordin g to the Constitution. Indeed, it is difficult to conceive of a right that is more clearly a ―public right‖ than the7

right to vote and participate in a lawful election. It therefore may be enforced under the public standing doctrine long recognized by th is Court and most recently reconfirmed in Cittadine v. Department of Transpo r tation , 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 dis miss the complaint. I would remand this case to permit the plaintiffs to attempt to prove their case.A TTORNEYS FOR A MICI C URIAE

B RIEF OF P ROFESSORS M ADISON , L EVINSON , AND E T C HESON IN S UPPORT OF A PPELLANTS

Andrew Mallon Drewry Simmons Vornehm, LLP I ndianapolis, Indiana
Craig A. Cowie Carrie F. Apfel Daniel I. Weiner James C. Cox Jenner & Block LLP Washington, DC

B RIEF OF L AWYERS ’ C OMMITTEE FOR C IVIL R IGHTS U NDER L AW IN S UPPORT OF A PPELLANTS

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

B RIEF OF L ONNA R AE A TKESON , M ATT A. B ARRETO , L ORRAINE C. M INNITE , J ONATHAN N AGLER , S TEPHEN A. N U Ñ O AND G ABRIEL R AMON S ANCHEZ IN O PPOSITION TO D EFENDANT ’ S P ETITION TO T RANSFER
A. Douglas Stephens Clermont, Indiana

B RIEF OF AARP AND N ATIONAL S ENIOR C ITIZENS L AW C ENTER IN S UPPORT OF A PPELLANTS

Daniel B. Kohrman AARP Fo undation Litigation Washington, DC
Brenda Wright Demos: A Network f

or 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

B RIEF OF L EAGUE OF W OMEN V OTERS OF THE U NITED S TATES

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 Was hington, DC
Amy T . Tridgell Crowell & Moring LLP New York, New York

B RIEF OF A MICI C URIAE

Eric Koselke Indianapolis, Indiana
M. Laughlin McDonald American Civil Liberties Union, Inc. Voting Rights Project Atlanta, Georgia

Anita Earls Southern Coalitio n f

or Social Justice Durham, North Carolina

B RIEF OF T HE NAACP L EGAL D EFENSE & E DUCATIONAL F UND , I NC
. IN O PPOSITION TO D EFENDANT ’ S P ET I TION TO T RANSFER
NAACP Legal Defense & Educational Fund, Inc. New York, New York
NAACP Legal Defense & Educational F und, Inc. Washington, DC