Boehm, Justice, dissenting.
I respectfully dissent. In broad brush, the issue in the federal constitutional challenges to Indiana’s voter identification law was whether the burdens this requirement imposed on some citizens’ right to vote were severe enough to overcome the presumption we give to all acts of the General Assembly. The Supreme Court of the United States resolved that issue against the plaintiffs, at least as far as any provision of the Federal Constitution is concerned. Crawford v. Marion County Election Bd., 128 S. Ct. 1610, 1615 (2008). The majority for the most part addresses this case as if that were the issue before us today. The majority categorizes the voter ID requirement as a regulation implementing the registration requirement and concludes that a regulation is valid if ―reasonable and uniform.‖ The majority dismisses the acknowledged problems that some voters may have in obtaining a voter ID as justified by perceived benefits in the integrity of the election.
As I see it, the state constitutional claim is quite different. The principal issue in this case is not a balancing of the relative benefits, if any, of a voter ID requirement against the problems that requirement creates for some citizens, if perhaps relatively few. The central question is who gets to resolve that issue under the Indiana Constitution. Under our Constitution some issues are immunized from revision by the temporary majority that comprises one session of the legislature, and must be addressed by the more deliberate and time consuming process of constitutional amendment. Article 16 of the Indiana Constitution permits amendment of the Constitution by agreement of a simple majority of each house in two successive General Assemblies, followed by approval by the voters of this state. This process is far less difficult than the approval by two-thirds of each house of Congress and ratification by three-quarters of the state legislatures needed to amend the Federal Constitution. U.S. Const. art. V. But it nonetheless represents the decision of the framers of our State Constitution to reserve some issues from the normal legislative process and require a more deliberative process, more extended debate, and a consensus over a longer period of time than is needed for ordinary legislation.
One of the subjects that the Indiana Constitution reserves to the amendment process is the ―qualifications‖ for voting. The question in this case is whether our State Constitution permits one session of the General Assembly to impose a voter ID requirement on Indiana voters, or requires that two successive sessions of the legislature agree that this measure is necessary, and then submit it to the voters for the people to make the final decision. For the reasons given below, I think both precedent and the language of the Indiana Constitution dictate that the voter ID requirement is an unauthorized qualification
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for casting a ballot. That requirement therefore can be imposed only if two successive sessions of the General Assembly and the voters of this state agree it is appropriate.
Article 2, Section 2 of the Indiana Constitution, entitled ―Voting Qualifications,‖ provides that ―A citizen of the United States, who is at least eighteen (18) years of age and who has been a resident of a precinct thirty (30) days immediately preceding an election may vote in that precinct in the election.‖ This section prescribes three, and only three, qualifications to vote: citizenship, age of eighteen or more, and residence in the precinct. It is quite different from the provisions of the 1851 Constitution, which limited voting to males, required that voters be 21 years of age, and imposed much longer residency requirements. Importantly, until 1881, even registration of voters was not authorized by the Indiana Constitution. Registration is now constitutional, but that hook does not support the voter ID requirement, and there is no other basis in the Constitution to deny voting rights to those unable to produce a voter ID.
Over the years the Constitutional provisions relating to voting have been amended on five different occasions, for the most part relaxing eligibility requirements and expanding the right to vote to groups previously excluded. Ind. Const. Ann. art. 2, § 2, at 392–93 (West 2007). For our purposes the most important of these is Amendment 3, one of a group of nine constitutional amendments that were first submitted to the voters in the 1880 spring election but had been declared invalid in State v. Swift, 69 Ind. 505 (1880), for failure to receive the required voter approval. Amendment 3 was resubmitted and ultimately adopted in 1881. For the first time it added to the Indiana Constitution the power of the General Assembly to require registration of voters. That authority is found today in Article 2, Section 14(c), which provides in its entirety: ―The General Assembly shall provide for the registration of all persons entitled to vote.‖ The need for an explicit constitutional authority to support the registration requirement was set forth in Governor Porter’s recommendation that the General Assembly resubmit the invalidated amendments to the voters. House Journal, Fifty-Second Session, 81, quoted in 2 Charles Kettleborough, Constitution Making in Indiana 178–80 (1916). After noting the potential for voter fraud without registering voters before the election, the Governor explained that the Indiana Constitution alone sets the requirements for voter eligibility, and the 1851 Constitution did not authorize a registration requirement. Id. at 178–79. As a result, without the proposed amendments, ―No registration law can be passed; the Constitution will not allow one.‖ Id. at 179. In short, the voter registration we all accept today is itself a qualification for voting that requires specific constitutional validation. The courts have repeatedly confirmed Governor Porter’s view that the legislature cannot impose qualifications for voting
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beyond those prescribed by the Constitution. E.g., Fritch v. State, 199 Ind. 89, 92, 155 N.E. 257, 258 (1927) (―When the Constitution defines the qualifications of voters such qualifications cannot be changed nor added to by statute.‖
; Morris v. Powell, 125 Ind. 281, 287, 25 N.E. 221, 223 (1890) (invalidating as a qualification a requirement that voters absent from the state for six months produce a certificate of property ownership).
The majority finds the voter ID to be a reasonable implementation of the registration requirement. The problem, of course, is that the plaintiffs claim that some eligible citizens are unable or unwilling for various legitimate reasons to obtain a voter ID, particularly in light of the recent restrictions designed to address national security concerns. We ordinarily give wide latitude to legislative judgment on matters of reasonable relationship in classifications created by statute. But any limitation on the right to vote surely strikes at one of the core values embodied in the Indiana Constitution. As Justice Mitchell of this Court put it 120 years ago:
Those provisions of the constitution which define the right of suffrage, and prescribe the qualifications of persons entitled to its exercise, and those statutes which look to the guarding of the purity of elections, and the integrity of the ballot-box, demand the gravest and most deliberate consideration whenever they are drawn into judicial discussion.
Morris, 125 Ind. at 297, 25 N.E. at 229. Legislation governing who can vote, and how, is a product of a legislature that depends on elections. Only the judiciary can preserve the rights of the citizens against dilution by the elected branches of government. To borrow a phrase from federal jurisprudence, whether a matter is properly viewed as a registration requirement validated by Article 2, Section 14 therefore requires ―strict scrutiny.‖ The voter ID does not pass that test because, at least as alleged in the complaint, it requires satisfying conditions designed to meet other regulatory purposes and thereby imposes conditions on voting not authorized by the registration provisions.
To the extent language from Simmons v. Byrd, 192 Ind. 274, 136 N.E. 14 (1922), suggests a more deferential standard of review of legislation imposing requirements in the guise of regulating the registration process, I believe that opinion went significantly further than the facts of that case required and should not be followed. The only issue in that case was the validity of registration requirements that have long been accepted in this state and are minimally necessary to operate a registration plan as Article 2 of the Indiana Constitution has authorized since 1881. The law in question dealt largely with the mechanics of registration and required of the voter only that the voter be registered, which could be.....
