INDIANAPOLIS – The Indiana Court of Appeals revived a bitter debate over Indiana’s strict photo identification law Thursday when it struck down the statute as unconstitutional for not treating all Hoosier voters equally.

The panel of three appellate judges, including former Allen County Judge Paul Mathias, found the law violates the Indiana Constitution because it favors Hoosiers using mail-in absentee ballots who do not have to show identification to vote, while those voting in person at the polls do.

“If it is reasonable to ‘more stringently govern absentee balloting,’ then it follows that a statute that imposes a less stringent requirement for absentee voters than for those voting in person would not be reasonable,” the decision said. “This is what the Voter I.D. law does.”

Statewide, roughly 200,000 Hoosiers voted by mail during the 2008 general election. In Allen County, that number was about 12,000.

Gov. Mitch Daniels quickly condemned the “extreme” and “preposterous” decision, noting the law has been upheld by three federal courts. He expects the decision to be reversed by the Indiana Supreme Court.

“It’s an act of judicial arrogance,” he said, noting that “the legislature had every right to write that law and this decision will be a footnote to history.”

Indiana’s Republican-backed voter ID law was passed in 2005 and requires voters to present a driver’s license or other government-issued photo identification at the polls.

A Hoosier who shows up to vote without a picture ID may cast a provisional ballot but must present a photo ID to the county election board within 10 days.

The U.S. Supreme Court upheld the law by a 6-3 vote in April 2008 based on the U.S. Constitution. But Thursday’s ruling was based on a review of the Indiana Constitution’s equal privileges clause, which says: “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”

In addition to the absentee exception, the court identified a smaller part of the law that isn’t uniform – allowing those who live in a state-licensed care facility that happens to be a polling place to vote without an ID.

The challenge was brought by the League of Women Voters of Indiana and was argued by attorney William Groth.

“We are grateful that the Indiana Court of Appeals has, at least for the time being, put a stop to legislative efforts to single out and burden a class of voters – those who vote in-person – without reasonable or justifiable cause and without any evidence that these burdens were necessary,” said Groth in a statement released on behalf of the League. “We are confident that the Indiana Supreme Court, upon further review, will reach a similar conclusion.”

Indiana Secretary of State Todd Rokita – the state’s chief election officer and the man named in the lawsuit – said he has asked the attorney general appeal the case to the Indiana Supreme Court, where a final decision would be made on appeal.

Attorney General Greg Zoeller said, “The state’s long-held view is that the voter ID law is constitutional, and we will vigorously defend the statute in arguing that position before the Indiana Supreme Court.”

Zoeller has 30 days to officially petition for the transfer.

This year is a non-election year in Indiana, so the immediate effect is minimal. But there are a few referendums for new school construction and a public question scheduled around the state in November that could be affected.

“Some continue to force us to use taxpayer dollars on an issue that has already been reviewed by the U.S. Supreme Court,” Rokita said in a statement. “The gamesmanship going on here is irresponsible and needs to stop.”

The Indiana Democratic Party – which lost the federal challenge of the law – claimed victory.

“By declaring that this law is not uniform or impartial, the court has recognized the very real barriers that Governor Daniels and Secretary Rokita had placed between voters and the ballot box,” party Chairman Dan Parker said. “We should all be interested in preserving the legitimacy of our electoral process, but to do so through disenfranchisement is simply unacceptable.

“From the outset, this law created more harm than good, and did little to address the vulnerabilities in our democratic voting system.”

Daniels called the decision transparently partisan and particularly went after Appeals Court Judge Patricia Riley, who wrote the opinion and who was appointed by former Gov. Evan Bayh in 1994.

The other judges on the panel were also appointed by Democratic governors.

“It’s an extreme decision – one that flies in the face of much better judges frankly,” Daniels said.

nkelly@jg.net