Attorneys ask justices to consider voter ID case

In an expected move, the Indiana Attorney General's Office has asked the state Supreme Court to consider whether the 4-year-old voter identification law is constitutional.

That happened Friday, and today the attorneys who'd persuaded the Indiana Court of Appeals to strike down the statute planned to file a transfer petition seeking Supreme Court review.

So begins the briefing period that will further expand the legal reasons various attorneys think the Indiana Supreme Court should weigh in on the constitutionality of the state's voter ID law, which is now in flux after the ruling in League of Women Voters of Indiana and League of Women Voters of Indianapolis Inc. v. Todd Rokita, in his official capacity as Indiana Secretary of State, No. 49A02-0901-CV-40.

A unanimous Indiana Court of Appeals panel of Judges Patricia Riley, James Kirsch, and Paul Mathias reversed Sept. 17 a ruling by Marion Superior Judge S.K. Reid, who late last year upheld the state statute and found it didn't violate Indiana Constitution Article 2, Section 2 and Article 1, Section 23. Instead, the appellate judges found the law "regulates voters in a manner that's not uniform and impartial," and as a result they instructed the trial judge to enter an order declaring it void.

While this is the first time the state justices could consider this issue as it relates to the Indiana Constitution, the federal courts – U.S. Supreme Court, 7th Circuit Court of Appeals, and the U.S. District Court, Southern District of Indiana – have all upheld the state statute adopted by the General Assembly in 2005.

In its transfer petition, the AG's office urges the state justices to accept the case on grounds that this case signifies an issue of great public importance that it notes "protects the legitimacy of elections," "enjoyed 75 percent public support at the time of enactment," and has been upheld at each federal court level.

The main arguments in the petition are:

• The League wrongfully sued the Indiana Secretary of State, who does not enforce the statute; the Court of Appeals dismissed this issue after finding he was a satisfactory defendant.

• The in-person and absentee voting processes are inherently different in ways that matter to the usefulness of the voter ID requirement.

• The nursing home precinct exemption reasonably relates to inherent characteristics of residents who vote where they live.

• "The Voter ID Law is self-evidently constitutional, so there has never been any point in proceeding with discovery or evidentiary submissions," the brief states. "The trial court agreed and dismissed the case. The Court of Appeals, however, responded to the motion to dismiss not simply by reinstating the case, but by ordering judgment against the State. The State has not even been permitted to answer the complaint, much less put the League to its burden or come forward with evidence. In this regard, the decision below departs so significantly from law and practice that it independently justifies granting transfer."

Indianapolis attorney Bill Groth at Fillenwarth Dennerline Groth & Towe told Indiana Lawyer he planned to file the League's transfer petition today. The petition relates to the appellate court's finding that the law isn't a substantive voting qualification but a procedural regulation, Groth explained.

Each side will be given a chance to file a set of response briefs before the justices take the issue under advisement. No timeline exists for them to make a decision.