[EL] different ID rules (and other rules) by age?

[Robbin Stewart]

Indiana has a photo ID set of statutes that vary by age. For those over 65,
there is universal absentee balloting as an alternativer for those without
ID.  For those under 65, the absentee voter must be handicapped or out of
the county on election day.
The Michigan case held that voter ID is constitutional when there's
universal absentee balloting as an alternative; I think this is probably
correct. I can see a rational basis for allowing the elderly to vote
absentee, but I think a stricter standard needs to be applied. The over-65
group has different preferences that the under 65, so rules that make it
easier for them to vote can change the outcome. We have data from 2006 that
shows that absentee voting tripled in the first election voter was
required, but I haven't seen any data since then.

The Indiana constitution has two equal protection clauses that can be
applied to voting.

In League of Women Voters v Rokita, plaintiffs cited to Article I section
23, a general equal protection clause. But after Collins v Day held that
section 23 requires deference to the legislature, nobody cites to it
anymore, and the League lost at the Indiana Supreme Court based on Collins
v Day. The other clause is Article II section I, "elections shall be free
and equal." This clause has been relied on in the Missouri and Wisconsin
cases, but has not been fully litigated in Indiana. There is some authority
in the older cases for this clause to mean something like strict scrutiny.

I have been wondering if the disparate treatment of the under 65 group can
be found to state a claim under the 26th Amendment, which requires the
state to allow 18-21 year-olds to vote. There have been basically no cases
on this amendment, so I have no idea what standard a court would apply, and
whether it applies to vote dilution as well as complete prohibition.

I think that Indiana's voter ID is now ripe for an as-applied challenge, by
someone with the resources to conduct discovery, have experts crunch the
numbers, and show that the outcomes are being affected, in ways that are
relevant to the 4-part Anderson test.
Such a case should raise First Amendment issues, and try to show a severe
burden under Norman v Reed, but would more likely be judged under the
Anderson standard - which is potentially winnable, with the right data.
Should also raise 24th A, VRA, and anything else that seems to fit.
But I don't have those resources.



On Fri, Aug 17, 2012 at 4:08 PM, Doug Hess <douglasrhess at gmail.com> wrote:

>
> Do many state photo ID laws have rules that differ based on age?
>
> I'm just thinking through the basic fairness problem this sets up: if
> you're 64 you could have a harder time voting than your 66-year old spouse,
> assuming you both have and lack the same kinds of ID. Does age determine
> policy in other areas of election administration? I.e., if you are over a
> certain age you have an easier time requesting an absentee ballot, etc.? If
> so, why? Is it that age is being used as a proxy for disability or
> transportation limitations?
>
> I guess it gets to the heart of the issue: different citizens in the same
> state have unequal probabilities of facing a barrier. Perhaps cataloging
> those potential differences and thinking of them as probabilities, tallies
> of paths to the ballot, or as total costs will make estimating and
> explaining who is harmed more apparent than just estimated total numbers or
> percents of the population.
>
> For instance, one group is "people over age X" who are are allowed to have
> recourse to Y procedure and can use some list of IDs, compared to "people
> who rent with utilities included" who will have fewer forms of ID and don't
> get recourse to Y procedure, compared to those in the uniformed services
> who may be required by the service to have a certain ID that counts for
> voting that nobody else could use and also don't have recourse to Y
> procedure but are the only ones that have recourse to Z procedure if they
> are overseas, etc.. I'm just making these scenarios up, but seems to me
> such a chart would help highlight how the number of "hurdles to the ballot
> box" differ for various groups (of course, many people may be in more than
> one group, but still ... ).  I guess this could also be done as a decision
> tree chart or a creative designer could impact this information like a
> "Candy Cane" game board, if you are this kind of person you get to jump
> ahead, but if you are another kind of person, you get detoured onto a
> longer route.
>
> BTW, that the judget in PA seems to think that 1% is ok because it's less
> than the percentage some expert gave goes to show that comparisons of
> numbers play odd tricks on people. Did he say why 1%, or was it "more than
> 1% but less than whatever," was acceptable? One percent of the adult
> citizen population in PA is a large number of people. (Or did the news
> reports not portary this correctly? Was this debate not important to the
> judge's conclusions? I confess I didn't read the decision.)
>
> Douglas R. Hess, PhD
> Washington, DC
> 202-955-5869
> douglasrhess at gmail.com
>
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