Indiana lawyers rarely invoke Indiana's Article 1, Section 23 when raising equal protection claims in litigation and for good reason. The standard of scrutiny developed by the Indiana Supreme Court under Article 1, Section 23 is the lowest possible standard, a much lower standard than the U.S. Supreme Court applied in holding that Indiana's Voter ID law does not run afoul of the Equal Protection Clause. Judge James Kirsch, one of the three Democrats signing on to Judge Patricia Riley's opinion striking down the statute, is quite familiar with this undisputed fact. Four years ago, Judge Kirsch joined in an opinion by Judge Michael Barnes, Morrison v. Sadler, which held that Indiana's Defense of Marriage Act does not deprive same-sex couples in Indiana of the right to equal protection under the Indiana Constitution. "Unlike federal equal protection analysis, there is no varying or heightened level of scrutiny based on the nature of the classification or the nature of the right affected by the legislation," Judge Barnes wrote. Barnes goes on to explain the standard applied by our Supreme Court:
The State has no burden to demonstrate that the statute is constitutional; the burden is entirely upon the Plaintiffs to overcome the presumption of constitutionality and to establish a constitutional violation. See Dvorak v. City of Bloomington, 796 N.E.2d 236, 239 (Ind. 2003). Enactments challenged under the Indiana Constitution are presumed to be constitutional until clearly overcome by a contrary showing, and any doubts are resolved against the party bringing the challenge. Id. at 237-38. The party challenging the statute must “negative every conceivable basis which might have supported the classification.” Collins, 644 N.E.2d at 80 (quoting Johnson v. St. VincentHosp., 273 Ind. 374, 404-05, 404 N.E.2d 585, 604 (1980)). Collins requires only that the disparate treatment accorded by legislation, not the purposes of the legislation, be reasonably related to the inherent characteristics that distinguish the unequally treated classes, although legislative purposes may be a factor considered in making the reasonable relationship determination. Dvorak, 796 N.E.2d at 239. However, our supreme court has also stated that it will not “inquire into the legislative motives prompting such classification.” Collins, 644 N.E.2d at 80 (quoting Chaffin v. Nicosia, 261 Ind. 698, 701, 310 N.E.2d 867, 869 (1974)). Rather, “[l]egislative classification becomes a judicial question only where the lines drawn appear arbitrary or manifestly unreasonable. So long as the classification is based upon substantial distinctions with reference to the subject matter, we will not substitute our judgment for that of the legislature . . . .” Id.Judge Barnes notes in his opinion the overwhelming task a plaintiff has in proving that a state statute violated Indiana's Article 1, Section 23. "The practical effect of Collins and cases following it is that statutes will survive Article 1, § 23 scrutiny if they pass the most basic rational relationship test," he writes. "In fact, our research has revealed that of the approximately ninety reported 'Equal Privileges and Immunities' cases following Collins and its clarification of Article 1, § 23 analysis, only three have finally resulted in holdings (after supreme court review) that a particular statute violated Article 1, § 23." Barnes added, "No statute or ordinance has ever been declared facially invalid under the Collins test.
It's quite a rarity indeed as Judge Barnes notes for an Indiana court to rule an Indiana statute violates the state's equal protection clause, particularly when that same statute has already survived scrutiny under the higher standard imposed by the U.S. Constitution's Equal Protection Clause. Barnes discussed the two most recent cases where the statute fell short of Indiana's low standard. One case involved a challenge to the 2-year statute of limitations in Indiana's Medical Malpractice Act as applied only to particular plaintiffs. The other case involved a provision of Indiana's Medicaid law that prevented a pregnant woman from access to an abortion where the pregnancy posed "a serious risk of substantial and irreversible impairment of a major bodily function."
In striking down Indiana's Voter ID law, the three- judge panel was constrained by the Collins test. Judge Riley conceded in her opinion that the statute did not affect a person's qualification to vote but rather "a regulation of the time, place, or manner in which otherwise qualified voters must cast their votes." The state insisted Indiana's Voter ID law doesn't impose an arbitrary rule because people who vote in person are subject to the photo ID requirement and those who vote by absentee ballot are not. As the state explained its rationale:
The General Assembly was simply acknowledging and accommodating a few basic self-evident realities: (1) regardless of where they live, all seniors and disabled voters can vote absentee and need not provide photo identification in doing so; (2) seniors and the disabled living in licensed care facilities that are not polling places may be likely to vote absentee in order to avoid the travel required for voting; (3) seniors and the disabled who live in care facilities that are polling places may be more likely to vote in person because they will not have to travel to do so; (4) seniors and the disabled who live in care facilities would likely have particular difficulty traveling to obtain photo identification; and (5) seniors and the disabled who vote in person in the facilities where they live are likely to be identifiable as residents by election officials and unlikely to commit fraud by intentionally misidentifying themselves.Judge Riley's opinion essentially concludes that the class exception created for absentee voters in certain state-licensed facilities is "based in part upon an arbitrary or unnatural characteristic which grants an unequal privilege or immunity to residents of state licensed care facilities which also happen to be polling places and fails to treat persons similarly situated uniformly." In other words, she is striking down the entire statute because the state law makes it easier for elderly persons living in state-licensed facilities that happen also to be polling places than other persons who vote in person at that polling location. Judge Riley concedes that the photo ID requirement itself for in-person voters does not violate Indiana's equal protection requirement. Yet, she found the differing treatment of absentee voters and a small number of persons living at state-licensed facilities where polling places are located as sufficient reason for striking down the law. She writes:
Governor Daniels has been criticized by House Speaker Pat Bauer and others for being "intemperate" because of his sharp words about the opinion yesterday. Daniels called the opinion "preposterous" and "an act of judicial arrogance." Indeed, Riley's opinion relies on no Indiana judicial precedent for reaching such an extreme result as striking down the Voter ID law in its entirety. Short of overruling the Collins test previously adopted by our Supreme Court, most objective legal observers would agree that Riley's opinion is not supported by the law and will most certainly be overturned by our Supreme Court on review.
It seems that the inconsistent and impartial treatment favoring voters who reside at state care facilities which also happen to be polling places could be excised from the Voter I.D. Law without destroying the primary objectives of the Law. However, the same cannot be said for the inconsistent and partial treatment favoring absentee voters who choose to mail their votes without destroying the opportunity for mailing votes. There may be different ways in which the inconsistent and partial treatment of the Voter I.D. Law could be cured, but it is not our task to form suggestions for legislation . . . Therefore, we must reverse and remand, with instructions to the trial court that it enter an order declaring the Voter I.D. Law void.
UPDATE: The Indiana Bar Association has taken Gov. Daniels to task for personally criticizing Judge Riley for her decision. The Indiana Law Blog reports on the statement issued by the IBA:
On Thursday, Sept. 17, the Indiana Court of Appeals issued a ruling in Indiana League of Women Voters v. Rokita, the “voter ID” case, and Gov. Mitch Daniels commented on the decision and the judges who heard the case. While the Indiana State Bar Association (ISBA) recognizes that Gov. Daniels has championed the cause of judicial independence, the State Bar is nevertheless compelled to emphasize that comments such as those attributed to the governor are not helpful in advancing appropriate respect for the courts and the judicial process, and honoring the separation of powers doctrine.Daniels is licensed to practice law in Indiana; however, his law license has been in inactive status since 2003.
The ISBA respects the governor’s, and every citizen’s, right to disagree with the decision. There are rules, however, that govern judicial conduct and appropriate procedures for dealing with complaints about the judiciary. Comments about individual judges are not the way to express disagreement with any court opinion.