As part of its continuing effort to ensure that older voters can participate fully in the political process, AARP filed a "friend of the court" brief in a case that challenged voter photo-ID requirements enacted by the State of Indiana.
The Supreme Court of Indiana — the state's top court — ruled that the case was properly dismissed, rejecting claims that the law violated the state constitution.
Previously, a bitterly divided U.S. Supreme Court upheld the Indiana law that requires voters to show government-issued photo IDs. AARP had urged the court to strike down Indiana's uniquely onerous requirements as an undue burden on the fundamental right to vote, under the U.S. Constitution, but the court disagreed.
Emphasizing states' compelling interest in the integrity of the voting process, both in actually verifying that people presenting themselves to vote are eligible to do so, and also in safeguarding voter confidence in the process — even in the absence of any concrete evidence of supposed vote fraud in the form of voter impersonation, the court upheld the law generally in its 2008 ruling, Crawford v. Marion County Board of Elections.
The Crawford court acknowledged that Indiana's law might impose a "special burden" on older, indigent and disabled people (as well as those with religious objections to being photographed). But nevertheless, the court dismissed such concerns as minimal in their overall effect on the voting populace. Although the law might be difficult to satisfy for "a few voters," the court ruled, the burden on those few did not justify invalidating the photo requirement for the vast majority of voters for whom compliance would be easier.
But a powerful dissenting opinion pointed out that Indiana's law "threatens to impose nontrivial burdens on the voting rights of tens of thousands of the state's citizens," particularly imposing "unreasonable and irrelevant burdens" on voters who are poor and older, and that it was enacted despite little or no evidence of actual in-person voter fraud — the only form of voting fraud a photo ID can prevent.
While upholding the law on its face, the court left the door open for future challenges to photo ID laws based on concrete evidence that eligible, registered voters have been unfairly burdened and prevented from voting by the rules requiring them to obtain photo ID (also known as an "as applied" challenge to the law).
While the Crawford decision put to rest the hopes that federal law might keep "photo ID" from becoming the rallying cry of a new generation of legislators committed to tightening voting requirements, the Court also left open the possibility of challenges to photo ID laws based on state law. And just a few months after the Crawford decision, a group of Indiana voters filed a new lawsuit — in state court — to overturn the Indiana photo ID law and to put to the test the possibilities left open by the U.S. Supreme Court.
Based on nationwide estimates of the share of older voters who lack a driver's license, the most common form of photo ID acceptable under Indiana law, as many as 140,000 older voters are unable to vote in person because of the Photo ID law. The law requires voters to show a government issued photo ID. In most cases, this means a valid driver's license or passport. For those who do not or cannot drive or travel internationally — and thus have neither a driver's license nor passport — Indiana provides state-issued photo identification cards at no cost.
However, "free" identification cards do not come without cost, and are not always obtainable. A birth certificate must still be presented in order to obtain an ID, at a cost that can vary from $10 up to $60 for out-of-state documents. Residents also must arrange for transportation (or postage and shipping charges) to obtain documents and IDs.
Even worse, Indiana residents born out-of-state may need a government-issued ID in order to obtain a copy of their birth certificates in to order to get an ID to vote. In some states, before the 1960s, many minority mothers gave birth outside of hospitals (in some cases because of race-exclusive laws or rules, or simply because of limited income), so their children may not have a birth certificate on file. Moreover, because the photo ID law requires a voter's name to match the voting roll, women who changed their names at marriage by choice or under a statutory duty to do so, face additional and sometimes insurmountable hurdles to get marriage certificates or other official name change documents in addition to birth records. Prior to 1974, the State of Indiana required women to change their maiden name at marriage.
AARP's brief in League of Women Voters of Indiana v. Rokita was filed in the Supreme Court of Indiana by attorneys with AARP Foundation Litigation in conjunction with the National Senior Citizens Law Center, pro bono assistance by the private law firm of Hogan & Hartson, and the Boston-based voting rights advocacy group Demos. The brief asserted that treating older voters differently runs afoul of the Equal Privileges and Immunities clause of the Indiana Constitution.
The brief took aim at supposed protections for older voters included in the law. First, the law's defenders pointed out that older voters can vote absentee without a photo ID. But AARP's brief pointed out that this distinction makes no sense, as absentee voting is far more prone to vote fraud, yet is far less heavily regulated by the State of Indiana. Besides, many voters, including older voters, prefer to vote in person. This permits them to avoid the confusing instructions with which absentee voters must comply, and also allows them the chance to pay attention to the statements of candidates until the very last day of a campaign, instead of forcing them to choose candidates before the campaign is over. Second, photo ID supporters noted that the law permits residents of state-licensed care facilities that also are polling places to vote without photo ID. In response, AARP's brief contended that there is no meaningful distinction between state-licensed care facilities that do, and those that do not, serve as polling places. Thus, it makes no sense to allow residents of the former to vote without photo ID while not affording the same privilege to residents of the latter.
AARP's brief also noted that Indiana could achieve its supposed purposes — preventing in-person vote fraud — through far less onerous means. AARP pointed out that some states allow election officials to request photo identification (allowing suspicious conduct to be investigated without imposing a blanket requirement on all voters), or allow voters to cast a provisional ballot in cases of suspected fraud, or allow voters to present non-photo identification materials (such as utility bills or bank statements). "Indeed, Indiana's onerous photo identification rules are virtually unique," the brief states.
Older voters are far less likely to have a driver's license or other official photo identification, and older low-income, minority or women voters face particular obstacles in collecting the documents necessary in order to obtain a state ID. Yet older voters are disproportionately likely to vote. AARP's brief argued that Indiana's law sets an unacceptable obstacle in the way of voting, the most fundamental form of civic participation, and thus, AARP argued, violated the Indiana Constitution.
The Supreme Court of Indiana did not agree. Characterizing much of the objectionable requirements as "regulatory" in nature, the court ruled that the complained-of requirements might be challenged on grounds of uniformity and reasonableness, but were not unconstitutional as impermissible additional "substantive" qualifications. The court then turned to the question of whether in fact the Photo ID Law provisions violated principles of uniformity and reasonableness. The court found they were justified on the grounds of protecting the integrity and reliability of the electoral process. Finally, the court rejected the argument that the law's requirements unconstitutionally treated different classes of people differently. The court found there was no way to require identification from absentee voters and ruled that "legislation is not constitutionally deficient for failing to impose an unenforceable, useless, requirement." As for residents of licensed care facilities, the court acknowledged that the law burdened these voters, but characterized the number of these citizens as "relatively extremely small" and therefore any disparity in their treatment was "minor and insubstantial" — and thus permitted by the state constitution.
The majority noted that Missouri's top court came to a very different conclusion when assessing its voter ID law, in the case of Weinschenk v. State, in which AARP also participated as a "friend of the court." But the court distinguished the laws challenged in Missouri and Indiana both in terms of the substance of their technical requirements and in regard to the protections afforded the two states' constitutions.
Indiana Justice Boehm filed a lengthy and thoughtful dissent in Rokita, noting that in contrast to the majority, he would have allowed the plaintiffs to try to prove their claims. He was sufficiently concerned about the law's apparent effect of blocking access to the polls, the historical problem of a majority of the electorate being able to force unequal treatment on a minority (a tension in politics that the judicial branch is supposed to help alleviate), and the law's inability to address the very subject it was supposed to address — voter fraud — given that the evidence showed that the largest fraud problem in Indiana was with absentee ballots.
Finally, Justice Boehm took issue with the majority's dismissal of the small number of voters in residential facilities who the majority noted would be burdened. "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," he wrote. More emphatically, he noted that "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 to those directly affected."