The Herald Bulletin

April 30, 2008

Voting case latest high-profile loss amid federal court tilt


By KEN KUSMER

Associated Press Writer

INDIANAPOLIS (AP) — The U.S. Supreme Court decision to uphold Indiana’s Voter ID law marks the latest in a series of high-profile setbacks for the American Civil Liberties Union of Indiana, but observers say the trend speaks mostly to the conservative bent of the federal judiciary.

Monday’s 6-3 ruling in which the court said states can require voters to produce photo identification came on the heels of failed ACLU-Indiana challenges this month of Indiana’s “In God We Trust” license plates and of a Bureau of Motor Vehicles policy to revoke driver’s licenses if information doesn’t match Social Security records.

It also followed a 7th U.S. Circuit Court of Appeals ruling last October tossing an ACLU-brought lawsuit challenging sectarian prayers in the Indiana House of Representatives because a group of taxpayers who sued over the practice did not have legal standing to do so.

Whether one supports the mission of the ACLU or opposes it, experts said, the losing streak underscores the conservative shift of the federal courts, especially since the confirmations of Supreme Court Chief Justice John Roberts and Associate Justice Samuel Alito more than two years ago.

“There is a losing streak of sorts in some of these high-profile cases,” said Daniel Conkle, a First Amendment and constitutional law expert at Indiana University School of Law-Bloomington. However, that doesn’t diminish the ACLU’s role, he said. “A group like the ACLU plays an important function in society in bringing cases that might be controversial.”

Ken Falk, the ACLU-Indiana’s legal director, rejected the notion that he was on a losing streak. He noted he and his two colleagues at the ACLU-Indiana win many cases that go unnoticed by the media.

For instance, Falk said a case brought by inmates over conditions at the Elkhart County Jail resulted in the construction of a new $97.3 million lockup there in a case resolved earlier this month. Also, Franklin Community High School cleared a student’s record and withdrew threats to punish him for refusing to stand during the Pledge of Allegiance after the ACLU threatened a lawsuit.

The very fact that the ACLU wins some of those cases underscores an important quality about U.S. law.

“We do nothing but take umbrage at what the government does,” Falk said. “The fact that we are as successful as we are speaks to the strength of the American legal system.”

He was philosophical about Monday’s ruling. It was clearly a loss for the ACLU, he said, but the court left open the possibility it will reconsider such laws if attorneys can show they place an unreasonable burden on voters.

“The law that’s been established allows for future challenges. I think everything would agree with that,” Falk said.

Sheila Kennedy was ACLU-Indiana’s executive director from 1992 to 1998 before becoming an assistant professor of law and public policy at IU’s School of Public and Environmental Affairs in Indianapolis. She noted that in the House prayer case, Falk won in U.S. District Court before the appeals court ruled that the group of taxpayers he represented did not have the legal standing to sue the government.

“And that’s scary: There is an entire category of plaintiffs that are not going to get their day in court,” said Kennedy, a former Republican candidate for Congress. “This is a Supreme Court that favors government over individuals, and I find that very troubling.”

When it comes to ACLU fundraising, Kennedy said, donors to the nonprofit pay little attention to big-case losses because they support the broader mission of the group to challenge government intrusions on individual rights.

Federal courts are less protective of civil rights than in years past, but civil liberties groups still need to litigate good-faith claims to test laws, said Ivan Bodensteiner, a constitutional law expert at the Valparaiso University School of Law. If lawyers want only to win cases, they won’t bring many.

“You sometimes file a lawsuit knowing that it’s difficult, knowing that there’s a good chance you’re not going to prevail,” Bodensteiner said.

The ACLU-Indiana is one of the better state chapters in the country, he said.

“They have a very good reputation as one of the more active state chapters, one of the more competent,” Bodensteiner said.

Falk and the chapter’s two other staff attorneys, Jacquelyn Bowie Suess and Gavin Rose, and a legal assistant receive about 800 requests for legal advice each month, he said. Each year they file 20 to 30 new cases, which can take years to resolve.

Wins and losses are part of the legal process, Falk said, and he can’t worry about the philosophical leanings of the individual judges and justices he goes before.

“You bring cases because you think they’re meritorious and there’s a reason to do so, and then the cases are litigated,” he said.