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Friday, September 18, 2009

Ind. Decisions - More on "Indiana officials ridiculed the decision and said it would be appealed to the state Supreme Court"

Updating this ILB entry from yesterday (that includes ILB comments), Niki Kelly's story today in the Fort Wayne Journal Gazette concludes:

[Governor and Indiana attorney] Daniels called the decision transparently partisan and particularly went after Appeals Court Judge Patricia Riley, who wrote the opinion and who was appointed by former Gov. Evan Bayh in 1994.

The other judges on the panel were also appointed by Democratic governors.

“It’s an extreme decision – one that flies in the face of much better judges frankly,” Daniels said.

"Voter ID decision resurrects debate: Governor slams ruling by state appeals court, calling it partisan" is the headline to this lengthy story today by Bill Ruthhart and Jon Murray of the Indianapolis Star. Some quotes:
The Indiana Court of Appeals' rejection of the state's controversial voter ID law Thursday has reignited a political firestorm over its merits and left Gov. Mitch Daniels accusing judges of playing politics.

The ruling fanned the flames on a debate that has raged since 2005, when Indiana became the first state to require voters to show government-issued photo identification at the polls.

Republicans have long held that the law strengthens the electoral process and prevents fraud, while Democrats have insisted that it disenfranchises elderly, disabled and poor voters.

Many thought the debate had been put to rest last year when the U.S. Supreme Court upheld the law, but Thursday's ruling was based on a League of Women Voters' challenge that the statute violated the Indiana Constitution.

"It's surprising, because several courts already upheld the photo identification law," said Michael Pitts, a professor at the Indiana University School of Law-Indianapolis who has studied voter ID laws across the country. "A lot of people saw this as a Hail Mary on the part of the opponents, but this is far from over. The (Indiana) Supreme Court most certainly will weigh in on this."

Pitts said there's no telling how the state's highest court will rule, but Daniels already is predicting a reversal.

The decision by the appeals court did uphold the general purpose of the law: Hoosiers must prove their identity before voting.

But the three-judge panel, led by Judge Patricia A. Riley, unanimously ruled that two provisions of the law run afoul of the Indiana Constitution's "Equal Privileges and Immunities Clause." The decision said the voter ID law is not applied in a "uniform and impartial" manner for two reasons:

It doesn't require mail-in absentee voters to produce a photo ID.

It exempts residents of state-licensed care facilities from the ID requirement if their facility serves as a polling place.

The decision would not be applied to any elections until the Indiana Supreme Court reaches a final ruling on the matter, according to the state's solicitor general's office. Indiana's next statewide elections are in 2010.

In the 2008 general election, about 200,000 Hoosiers voted absentee by mail, and thus did not have to produce a photo ID.

Less than an hour after the ruling, Daniels called it "preposterous" and immediately vowed an appeal to the Indiana Supreme Court.

The governor said the decision -- by judges all appointed by Democratic governors -- was "transparently" partisan and an act of "judicial arrogance." He also lashed out at Riley, who wrote the opinion, saying she had been "reversed before."

"It would be one thing if this had not been litigated from the bottom up through the federal system and if multiple courts, including the U.S. Supreme Court, had not already spoken," Daniels said. "The legislature had every right to write that law. This decision will be a footnote to history, eventually."

House Speaker B. Patrick Bauer, D-South Bend, applauded the decision and said the law had been used to disenfranchise thousands of voters. He rejected Daniels' assertion that the decision was a partisan one.

"He doesn't have a judicial temperament, does he? If he doesn't like something, his response is to make a personal attack," Bauer said of Daniels. "I think this decision was clear: You don't treat different people differently. It was easier to vote absentee than to vote in person." * * *

"This decision sends the signal that the state courts are the place to take the photo identification battle," said Pitts, the IU professor. "I think you'll see opponents go from court system to court system in states to fight this." * * *

Thursday's decision noted the legislature could have required mail-in absentee voters to sign an affidavit, but also said it was not the job of the court to "form suggestions for legislation."

Should the Indiana Supreme Court reach a similar decision, the door would be open for the legislature to alter the law.

Pitts said requiring IDs at state-licensed care facilities would be an easy fix to one of the areas cited in the decision.

But he questioned how having mail-in absentee voters sign an affidavit could be equaled to presenting photo ID at a polling place. Instead, Pitts said a more reasonable solution might be to require absentee voters to provide a photocopy of their identification cards.

That, however, could open up the law to criticism that allowing absentee votes without an ID was designed to avoid -- hardships on senior citizens, many of whom do not have photo identification.

"I don't see a good fix that doesn't create problems elsewhere," Pitts said. "This isn't a narrow decision that's just on the margin of the law."

The governor said he doesn't think the General Assembly will need to revisit the matter.

"I don't think it will be necessary," he said. "This is an extreme decision, one that flies in the face of much better judges, frankly, and I'll look forward to its reversal."

As for Daniels' assertion that Thursday's decision was politically motivated, 13 of the 15 judges on the appeals court were appointed by Democratic governors. Democrats also appointed three of the five judges on the Supreme Court.

Pitts said political viewpoints and backgrounds play a role in a judge's decision but said it is wrong to characterize the court's decision as one motivated by political influence.

"Governor Daniels' statements indicate people should not have confidence in the judiciary," he said. "I hope whatever decision is made by the Supreme Court is 5-0 and doesn't fall along political lines, so people can have that confidence."

From Grace Schneider's story today in the Louisville Courier Journal:
The 29-page decision was hailed by the League of Women Voters, which filed a challenge to the voter ID law in 2008, and by Democratic leaders who had opposed its passage. But it was blasted by Republican leaders who supported the toughened restrictions in the measure as a way to combat vote fraud.

Karen Celestino-Horseman of Indianapolis, who with Bill Groth represented the non-partisan League in the case, said the group and its lawyers were “absolutely delighted” with the decision.

“We thought that the Indiana Court of Appeals ruling was well reasoned and written,” Celestino-Horseman said. * * *

The League, meantime, filed friend-of-the-court briefs in the federal case but wasn’t a party to it. After the U.S. Supreme Court ruling, however, the organization filed a state appeal of the trial court ruling, targeting the different rules for absentee ballots in contrast with in-person voting. The League also cited preferential treatment given to nursing home residents who vote where they live but aren’t required to show a photo ID, unlike other voters.

The appeals court sided with the League, citing the state Supreme Court’s conclusion in a 2006 case upholding more stringent rules for absentee ballots, such as requiring two sets of clerks’ initials on ballot envelopes. Because of inherent differences with in-person ballots, the Supreme Court ruled, mailed ballots could be more susceptible to “improper influences” and fraud.

“Because of this conclusion, the League contends that it is irrational for our legislature to require identification of in-person voters but not require an affidavit affirming the identity of mail-in voters,” Judge Patricia Riley wrote for the appeals panel. “We agree. If it is reasonable to ‘more stringently govern absentee balloting,’ then it follows that a statute that imposes a less stringent requirement for absentee voters than for those voting in person would not be reasonable. That is what the voter ID law does.”

Judges James Kirsch and Paul Mathias concurred.

The appeals court said the problem with nursing home voting could be fixed by requiring those voters to show an ID. The different treatment for in-person and mail-in voters could have various remedies, the panel said, “but it is not our task to form suggestions for legislation.”

The Washington Post today carries the AP story by Charles Wilson and Mike Smith.

Posted by Marcia Oddi on September 18, 2009 08:30 AM
Posted to Ind. App.Ct. Decisions