The Indiana Court of Appeals has decided, in the case of League of Women Voters v. Todd Rokita (pdf) that the Voter ID law (P.L. 109-2005) violates Article 1, Section 23 of the Indiana Constitution which states: “Section 23. 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.”
The Court of Appeals, therefore, reversed the order of the trial court and remanded the case with instructions that the trial court enter an order declaring the Voter ID law void.
Update The primary reason for the Court Appeals finding the Voter ID law to be unconstitutional seems to be the disparate treatment between absentee voters and in-person voters. (Incidentally, when the bill was originally considered, a proposed amendment that would have treated in-person and absentee voter requirements more equally was voted down.)
In 2005, the Indiana General Assembly passed a law requiring “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 to present photo identification issued by the government.” Crawford v. Marion County Election Bd., 128 S. Ct. 1610, 1613 (2008). The Voter I.D. Law applies to voting in both primary and general elections. Ind. Code §§ 3-10-1-7.2 and 3-11-8-25.1. It does not apply, however, to voters casting absentee ballots by mail or those who happen to reside at a state licensed care facility where a precinct polling place is located. I.C. §§ 3-10-1-7.2(e), 3-11-8-25.1(e), and 3-11-10-1.2.
The Court of Appeals found that the Voter ID law did not violate Article 2, section 2 by impermissibly imposing an additional qualification for voting. Rather, the Court of Appeals held that the Voter ID law was a regulation of the time, place, and manner in which eligible citizens could cast their vote.
Turning to the Equal Privileges and Immunities Clause (Art 1, sec. 23):
The League contends that three aspects of the Voter I.D. Law violates Section 23: (1) the disparate treatment between mail-in absentee voters and in-person voters; (2) the disparate treatment between voters who reside at state licensed care facilities that by happenstance are polling places and elderly and disabled voters who do not reside at state licensed care facilities that also happen to be polling places; and (3) the requirements that an identification contain an expiration date and photograph is not reasonably related to the purpose of the statute.
Citing to a case where the Supreme Court decided that a provision placing more stringent requirements on absentee ballots to be included in a recount than in-person ballots was constitutional, the court of appeals noted the Supreme Court’s rationale:
Our supreme court declared to the contrary that the statute was constitutional, because inherent differences make mailed-in ballots more susceptible to improper influences or fraud, and, therefore, “it is reasonable that the legislature believed it in the interest of Indiana voters to more stringently govern absentee balloting.”
It would be irrational for the legislature to believe that mailed-in ballots are inherently more susceptible to fraud on one hand and less susceptible to fraud on the other hand. (There is a legal fiction that the legislature acts rationally.) Consequently, imposing more stringent requirements on in-person voters than on absentee voters is unreasonable and violates the equal privileges and immunities clause of the Indiana Constitution.
Apparently there is a provision which exempts from the ID requirement individuals residing in care facilities which also serve as polling places. The Court determined that the inherent natural characteristics of such a class of people did not justify treating them differently in this fashion. “The nature of state licensed care facilities and the inherent natural characteristics of the residents who reside in them may make them subject to certain directed legislation, but the Voter I.D.?s grant of immunity from the identification requirement for in-person voters is not appropriately related to those characteristics.”
There was also some discussion of the photo and requirement that the ID have an expiration date which had not yet passed. The Court did not have any problems with those requirements. Specifically noting the incident where Purdue student IDs were accepted as identification without expiration dates, the Court said that this was irrelevant to a facial challenge to the statute. It would be a challenge to the way a statute was being applied, which is a different sort of lawsuit.