Playing Politics

Last week, the Indiana Court of Appeals struck down the state’s controversial “Voter ID” law.

 For those of you who somehow missed the intensely political arguments about the motives for and effects of that measure—the most restrictive in the nation—let me briefly recap its somewhat checkered history.

 The measure was originally championed by Secretary of State Todd Rokita, and passed by Republican majorities in the Statehouse. Democrats sued, supported by a number of organizations, including the AARP, Rock the Vote and the NAACP.  They argued that the law violated the federal constitution by effectively disenfranchising many poor and elderly voters who, not so incidentally, tend to vote disproportionately Democratic. They also pointed out that Indiana had been unable to identify any instances of in-person voter fraud. (Where fraud had been confirmed, it was within the absentee ballot process, but the Voter ID law doesn’t apply to absentee voting.)  

 The Democrats lost in a split opinion in the U.S. Supreme Court, although the Court left the door open for a future challenge. The Supreme Court based its opinion largely on the absence of concrete evidence that the law had prevented people from casting ballots. The Democrats had been unable to identify real people who had been adversely affected by the law.

 The recent Indiana Court of Appeals case was brought by the League of Women Voters, and was based on a different theory and a different constitution. This time, the argument was that Indiana’s Constitution requires all voters to be treated uniformly, and that the Voter ID law treats absentee voters and in-person voters differently. The Court unanimously agreed.  

 If the legislature wants to keep the law, in other words, they’ll have to apply it to all voters, not just those who show up in person.

 This seems eminently reasonable, but Governor Daniels was quick to accuse all three judges who issued the opinion of “playing politics.” This rhetoric is unfortunate on a number of levels. It betrays unfamiliarity with the arguments involved, and—worse—paints judges as no more than partisans in robes. Such attacks, as the Indiana Bar Association pointed out, undermine the legitimacy of the judicial system.

Daniel’s intemperate reaction also appears to confirm suspicions that the Voter ID law was itself a partisan effort. As Doug Masson of Masson’s Blog observed in the wake of Daniel’s outburst, “The facts fit together better if you discard the premise that voter fraud was the purpose of the Voter ID law, and replace it with the premise that one political party, temporarily ascendant, saw fit to pass a law that would shave a percentage point or two off the other side’s votes. The Republicans made a calculation that the voters who would vote in person and not have identification would skew Democratic. That calculus changes if you apply the ID requirements to those who vote absentee. Therefore, the absentee voters weren’t subject to the same level of scrutiny.”

In other words, the judges weren’t the ones playing politics.