Ken Klukowski: Sorry, You Have to Be a Voter to Vote


ACRU Staff


October 21, 2009

This column originally appeared on The Fox Forum website on October 20, 2009.

In 2008, the Supreme Court decided a major voting-rights case, making it clear that laws requiring voters to show identification are constitutional if certain safeguards are in place.

Now, it’s not so clear anymore. An Indiana appeals court has now struck down that same law and the Indiana Supreme Court must override that decision.

On Apr. 28, 2008, the U.S. Supreme Court upheld Indiana’s Voter ID law in Crawford v. Marion County Election Board. The controlling opinion, written by the staunchly-liberal Justice John Paul Stevens of all people, explained why such laws pass constitutional muster. To vote in Indiana, a voter needs to present state-issued ID, such as a driver’s license, when showing up at the polling place.

The law accommodates unusual circumstances to ensure that every legitimate vote gets counted. Indiana provides IDs at no cost if you can’t afford one. If you’re indigent or religiously object to being photographed, you can still vote with an affidavit at the courthouse. If you forget your ID, your vote still counts if you bring ID to the courthouse later.

Justice Stevens explained that burdens on voting rights are legitimized by relevant public interests weighty enough to justify those burdens. The Court found that requiring voters to show ID proving that they are the person they claim to be satisfies that test.

Central to the Court’s reasoning is that states have an important interest in protecting the integrity and reliability of the electoral process. In days past, voting was done in small communities where polling officials knew voters by name. Requiring ID brings us back to that level of protection against fraud.

Everyone thought the matter resolved when the Crawford case was decided. But then activists filed a state lawsuit in League of Women Voters v. Rokita, alleging that this law violates the Indiana Constitution. The trial court held there was no violation.

But in a shocking move, on Sept. 17, 2009, the Indiana Court of Appeals reversed the lower court, striking down the same law that was upheld by the U.S. Supreme Court only a year ago. The appeals court noted that people voting absentee or elderly voters casting ballots at a seniors’ home were not required to show photo ID. The court found this distinction unreasonable, and therefore that it violated the state’s Equal Privileges and Immunities Clause.

With all due respect, the Indiana intermediate court is wrong. Those allowances prevent adding extra burdens to absentee voters and senior citizens. There are other safeguards in place for absentee voting, and the Indiana legislature obviously found those safeguards sufficient without photo ID.

And many senior citizens living in community homes have special needs. To say that you cannot take measures to safeguard voting at polling locations if you make allowances to help those with special needs creates an impossible task. If legislatures do not make such exemptions, then such laws could be struck down in federal court for being too burdensome to those voters.

In short, it means that you cannot satisfy the Indiana Constitution without risking a violation of the U.S. Constitution. That seems far-fetched, unless you’re just trying to set up a no-win for voter-ID laws.

Especially since that clause of the Indiana Constitution requires that laws treating various citizens differently need only a reasonable or rational basis for doing so. My 91-year old grandmother lives in an Indiana seniors’ home, with constant care from my two sisters. She’s dealing with all the challenges you expect at her age; daily tasks are very difficult. It’s stunning for a court to hold that a law requiring my sharp-witted sisters to show their drivers licenses when voting cannot exempt my grandmother from having to show her license. Such a law is perfectly reasonable, demonstrating good policy judgment.

Indiana Governor Mitch Daniels–a calm and level-headed businessman–was understandably outraged. Calling it “preposterous” and “an act of judicial arrogance,” Daniels declared, “The legislature had every right to write that law. This decision will be a footnote to history.” The case is being appealed to the Indiana Supreme Court.

Former Indiana Congressman David McIntosh adds, “Laws like this are critical to maintaining the people’s faith in our democratic process. We have to show ID to do all sorts of things. It’s unfortunate when the courts go through contortions to strike down such a straightforward measure.”

America’s electoral system is so sound and reliable that we take it for granted. We shouldn’t. There are countries where election returns are a mockery of democracy. A new report shows widespread voter fraud in Afghanistan, casting doubt on the validity of that election. People struggle and die trying to vote in some countries, and America cannot afford to forget that sobering fact.

This Indiana case deserves national attention. Hoosiers embody the heartland of America, with a wholesome outlook on faith, family and freedom hearkening back to a time represented in Norman Rockwell paintings and Charlton Heston movies. Indiana demonstrates that such principles are timeless and critical for a healthy society.

Protecting the integrity of the voting process is essential to democracy. Reasonable measures to ensure that integrity are imperative.

Eternal vigilance is the price of freedom. Failing to safeguard the electoral process is a mistake that some free nations make only once.



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